PHILLIPS, Circuit Judge.
Eugene Foster appeals from a district-court order granting summary judgment in favor of Mountain Coal Company, LLC (Mountain Coal) on his retaliation claims under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12203(a). Specifically, Foster appeals the district court's dispositive conclusion that his requests for accommodation were inadequate and untimely. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand to the district court for further proceedings.
In November 2004, Foster began working at Mountain Coal's West Elk Mine (West Elk) in Colorado. On February 5, 2008, while working as a long-wall maintenance supervisor, Foster turned his head quickly and felt a pop in his neck. Because his neck was still hurting the next day, Foster sought care at the Delta County Memorial Hospital emergency room. After receiving treatment, Foster had the emergency-room doctor complete a return-to-work form that detailed Foster's injury, excused Foster from work on February 6 and 7, and authorized Foster to return to work on February 8. Although he ordinarily would have returned to work on February 8, Foster had a regularly scheduled week off beginning that day and continuing until February 15. And Foster had already scheduled a hernia operation for February 15 that required a recovery period extending until March 28. In all, Foster missed work from February 6 to March 28.
On February 10, Ed Langrand, the Manager of Human Resources at Mountain Coal, called Foster to a meeting with West Elk management to discuss the neck injury. Foster testified that sometime during the meeting, a West Elk work-safety manager "jumped out of his chair and stated he had talked to so-and-so in St. Louis, and this was not going to be a workmen's comp accident." Appellant's App. vol. 2 at 412. Although Foster was surprised by the safety manager's out-burst, the meeting continued. Langrand, along with other senior managers at West Elk, recommended that Foster see Dr. Thomas Dwyer, an orthopedic specialist, about his neck. During the meeting, Foster provided Langrand the return-to-work
During his deposition, Foster testified about his efforts to get a doctor to complete the Mountain Coal return-to-work form for his neck injury during his hospital stay from February 15 to February 17. Specifically, Foster asked his fiancée to get the form filled out by the emergency-room doctor who had seen him on February 6. This effort failed when the emergency-room doctor declined to complete Mountain Coal's forms.
Faced with this, Foster told Langrand that the emergency-room doctor had refused to complete Mountain Coal's form. In response, Langrand told Foster to have Dr. Dory Funk — Foster's primary-care doctor — complete Mountain Coal's form. Foster attempted to do so. But when Foster arrived at Dr. Funk's office, he learned that Dr. Funk was on vacation. Facing that impediment, he left the blank Mountain Coal form with an office receptionist, who told Foster she would "see about getting it filled out when Dr. Funk returned" and would call Foster to report any developments. Appellant's App. vol. 5 at 959.
About a week later, someone from Dr. Funk's office called Foster to tell him he could pick up the completed form. According to Foster, he then retrieved the form and took it straight to the West Elk office. Nobody was at the West Elk office except a receptionist whom Foster did not know. After waiting for an hour and a half, Foster got an envelope from his truck, put the completed form in the envelope, and left it on the desk of a human-resources clerk, Sandra White. Foster further testified that, while speaking by telephone with a Mountain Coal employee regarding his disability benefits on March 13, he also spoke with White, who told him she had not received the form and needed him to provide another one. Apparently, five days after talking to White, Foster again went to Dr. Funk's office, obtained another form that Dr. Funk dated and signed on March 18, and soon afterward dropped off the form at West Elk.
At this point in Foster's deposition, the attorneys representing Foster and Mountain Coal both agreed to discontinue Foster's deposition because he had become incoherent after ingesting his pain medication. When Foster's deposition resumed two months later, Foster testified differently about what occurred after he allegedly placed the Mountain Coal form on White's desk.
This second time, Foster testified that Langrand had told him to obtain the completed form on March 17 — not that White told him to obtain the completed form on March 13. Under this account, Foster testified that he understood that White had not received the completed form Foster left on her desk, but apparently White never told him to obtain a new one. Instead, on March 17, Langrand told Foster to return a completed form to Mountain Coal. Foster testified that he went to Dr. Funk's office the day after speaking with Langrand; obtained a second completed form, dated March 18; and took it to West Elk. Mountain Coal acknowledges that it received this completed return-to-work form.
On March 10, at Mountain Coal's direction, Foster met with Dr. Dwyer about his neck pain. After Foster's initial examination, Dr. Dwyer set out to learn more
On March 31, Foster returned to work after his hernia-operation doctor provided him a Mountain Coal return-to-work form on March 25. The form excused Foster from work from February 15 until March 28.
Appellant's App. vol. 2 at 420-21.
We now turn to Mountain Coal's account of the April 3 meeting.
Here it is worth pausing to note the dramatic difference between the parties' accounts of what happened at the April 3 meeting. Foster contends that Mountain Coal suspended him because he had obtained the March 18 return-to-work form from Dr. Funk, who had never personally examined Foster for his neck injury. Mountain Coal maintains it suspended Foster because it believed that he had lied about obtaining and delivering the earlier return-to-work form — the one Foster testified that he placed on White's desk.
On April 4, Foster attended his scheduled follow-up appointment with Dr. Dwyer. Foster reported that his neck condition had worsened after he had returned to work for three days and that "he was unable to work anymore due to significant increase in his pain." Appellant's App. vol. 8 at 1637. Despite Foster's worsened condition, Dr. Dwyer was uncertain that surgery was the proper treatment if Foster continued working the same job. Specifically, having now obtained Dr. Nelson's notes, Dr. Dwyer summarized his assessment of Foster's condition in his contemporaneous treatment notes: "At this point I am not certain that any surgery is really warranted." Id. at 1642. Dr. Dwyer "doubt[ed] that [he] would recommend carrying out" even a relatively minor surgical procedure "and then have [Foster] go back to work activities which, obviously, significantly aggravate all of his symptoms." Id. at 1644. Dr. Dwyer also wrote in his notes that he thought "it would probably be in [Foster's] best interest to consider different work activities." Id. at 1645. Dr. Dwyer remembered discussing these conclusions and recommendations with Foster during the April 4 appointment. At the end of the appointment, Foster said he would consider his treatment options and would see Dr. Dwyer on an as-needed basis.
On April 9, Foster visited Dr. Funk "to try and straighten out what is going on with his neck and concerns over potential disability." Appellant's App. vol. 6 at 1194. Dr. Funk concluded that Foster "should be considered disabled from his usual occupation at the mine secondary to his cervical [degenerative joint disease]." Id. at 1196. Dr. Funk did not specifically recommend surgery, since that option exceeded his area of expertise. Although Foster cannot remember many specific details of his April 9 visit with Dr. Funk, he does recall that Dr. Funk would not write a letter detailing Foster's injuries and disabled status until Dr. Funk received Dr. Dwyer's notes from Foster's April 4 appointment. Eventually, on April 11, Dr. Funk wrote a letter stating that Foster was "undergoing evaluation and will probably have surgery" and "should not return to his usual occupation until [his] medical issue is resolved." Appellant's App. vol. 1 at 231.
Meanwhile, according to the deposition testimony of Mountain Coal's senior managers, they had decided on April 9 to terminate Foster's employment. Although Langrand and Miller both testified that Mountain Coal terminated Foster's employment because Foster had lied about the return-to-work form he said he had left on White's desk, Jensen testified that Mountain Coal terminated his employment because Foster "did not present us with a correct Return-To-Work Form." Appellant's App. vol. 3 at 513. When asked to expand on his meaning, Jensen testified that Foster "didn't have the right date for his release and stuff on it." Id. at 514.
Langrand testified that, on April 9, Miller called Foster to fire him, but Langrand conceded that Mountain Coal had no record of any such call. Miller testified that he tried to call Foster on either April 9 or
The parties dispute what occurred on April 11. Foster testified that he went to Dr. Funk's office and picked up Dr. Funk's letter saying that Foster likely would need surgery and should not continue doing the same work. Foster first testified that at about 6:30 p.m. he called Kunde and read him Dr. Funk's letter. In an e-mail to Langrand and Miller the next day, Kunde mentioned this same timing and content of the call. But Foster later testified that he had picked up the letter at Dr. Funk's office at about 9:30 a.m. or 10:00 a.m. and called Kunde about thirty minutes later to read it to him. Foster relied solely on his memory as support for his calling Kunde at 9:30 a.m. or 10:00 a.m.
Mountain Coal agrees with Foster that, before the telephone call on April 11, Kunde knew nothing about Foster's suspension or termination. To support his argument that Mountain Coal had not fired him by April 11, Foster testified that Kunde would have been "the first to know" about his termination because Kunde was his immediate supervisor and "[t]hat's just the way management works." Appellant's App. vol. 2 at 422.
Dr. Funk also testified about the events of April 11. Dr. Funk testified that he believed that his transcription service would have faxed the April 11 letter to his office before he signed it. The fax notation on the letter shows that Dr. Funk's office received the transcribed letter at 1:58 p.m., although nothing in the record establishes that the fax machine's time setting was accurate. Dr. Funk testified that the transcription service commonly faxed unsigned letters to him, which he would then sign and put into an outbox for mailing. If Dr. Funk's testimony is correct, Foster could not possibly have picked up the signed April 11 letter between 9:30 a.m. and 10:00 a.m. on April 11. We note that Dr. Funk testified regarding these facts and practices after reviewing the April 11 letter and various other case documents. Even with this review, however, he testified that he did not remember receiving the April 11 letter via fax from the transcription service, signing the letter, or seeing Foster pick up the letter from the office.
On April 14, Foster received a mailed letter terminating his employment with Mountain Coal. The letter, dated April 11, terminated Foster's employment "effective April 9" because Foster "gave false information as to a credible Return To Work Slip." Appellant's App. vol. 1 at 230. We cannot know what date the letter was actually mailed (whether on April 11 or afterward) since the postmarked envelope is not in the record. Nor has Mountain Coal offered any testimony about when the letter was signed and deposited in the mail.
After Mountain Coal terminated his employment, Foster filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) and the Colorado Civil Rights Division. Ultimately, the EEOC issued Foster a right-to-sue notice, and on December 26, 2012, Foster filed a complaint against Mountain Coal.
Foster contends that the district court erred in granting Mountain Coal's motion for summary judgment on his ADA retaliation claims. We review de novo the district court's grant of summary judgment. Proctor v. United Parcel Serv., 502 F.3d 1200, 1205 (10th Cir. 2007). "In reviewing the record, we view all evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party." Id. "Summary judgment is only appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Hennagir v. Utah Dep't of Corr., 587 F.3d 1255, 1261 (10th Cir. 2009). "A fact is material only if it might affect the outcome of the suit under the governing law. And a dispute over a material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Bennett v. Windstream Commc'ns, Inc., 792 F.3d 1261, 1265-66 (10th Cir. 2015) (citations and quotation marks omitted).
The ADA's retaliation statute provides that "[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter." 42 U.S.C. § 12203(a). Initially, we need to distinguish between the elements of an ADA retaliation claim and an ADA discrimination claim. To prosecute an ADA discrimination claim, a plaintiff must show that he is a "qualified individual with a disability." See Davidson v. Am. Online, Inc., 337 F.3d 1179, 1188 (10th Cir. 2003) (quoting 42 U.S.C. § 12112(a)). But to prosecute an ADA retaliation claim, "a plaintiff need not show that []he suffers from an actual disability." Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1264 (10th Cir. 2001). Rather, on this point, the plaintiff need only show that he had a reasonable, good-faith belief that he was disabled. Id.; see Krouse v. Am. Sterilizer Co., 126 F.3d 494, 502 (3d Cir. 1997) ("By its own terms, the ADA retaliation provision protects `any individual' who has opposed any act or practice made unlawful by the ADA...." (quoting 42 U.S.C. § 12203(a))).
Because Foster attempts to prove his retaliation claim using circumstantial evidence, "[t]he analytical framework pronounced in McDonnell Douglas Corp. v. Green, [411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)], guides our review." Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir. 1999); see Proctor, 502 F.3d at 1207-08 ("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]."). Under this framework, once the plaintiff establishes a prima facie case of retaliation, "the employer has the burden of showing it had a legitimate, nondiscriminatory reason for the adverse action. If the employer can do so, the burden [of production] shifts back to the plaintiff to prove pretext, which requires a showing that the proffered nondiscriminatory reason is unworthy of belief." EEOC v. Picture People, Inc., 684 F.3d 981, 988 (10th Cir. 2012) (citations and quotation marks omitted).
To establish a prima facie case of ADA retaliation, a plaintiff must prove
After viewing the evidence in the light most favorable to Foster, we conclude that genuine issues of material fact exist regarding both Foster's April 3 and April 11 retaliation claims. Because the two claims involve separate issues of causation, we address each claim separately in our analysis.
Before analyzing the protected-activity prong of Foster's prima facie case of ADA retaliation, we review what a plaintiff must show when alleging as "protected activity" the act of requesting an accommodation. First, a plaintiff must show an adequate request for an accommodation sufficient to qualify as protected activity. See Jones v. U.P.S., Inc., 502 F.3d 1176, 1194-95 (10th Cir. 2007) (discussing the adequacy of a request for accommodation in the causation context). Here, Foster relies on his statements to Mountain Coal at the April 3 meeting and statements from Dr. Funk's April 11 letter that he read to his supervisor, Kunde. In response, Mountain Coal contends that Foster's requests were inadequate to notify it of Foster's "alleged protected activity." Appellee's Resp. Br. at 30. Second, the plaintiff must also show that he "had a reasonable, good faith belief that he was entitled to an accommodation" when he made the request.
Certain employee actions, such as filing an EEOC complaint, are indisputably protected activities under the ADA. See Proctor, 502 F.3d at 1208 ("Proctor clearly engaged in protected activity when he filed administrative charges with the [Office of Federal Contract Compliance Programs], EEOC, and the Kansas Human Rights Commission alleging disability discrimination based on UPS's failure to accommodate
For an ADA retaliation claim, a request for accommodation is adequate if it is "sufficiently direct and specific, giving notice that [the employee] needs a special accommodation." Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 23 (1st Cir. 2004) (quotation marks omitted); see EEOC v. C.R. Eng., Inc., 644 F.3d 1028, 1049 (10th Cir. 2011) (relying on Calero-Cerezo). "Although the notice or request does not have to be in writing, be made by the employee, or formally invoke the magic words `reasonable accommodation,' it nonetheless must make clear that the employee wants assistance for his or her disability." C.R. Eng., 644 F.3d at 1049 (quotation marks and emphasis omitted) (quoting Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999)); see Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002) ("An employee is not required to use any particular language when requesting an accommodation but need only inform the employer of the need for an adjustment due to a medical condition." (quotation marks omitted)).
Many courts have evaluated the adequacy of requests for accommodation in cases involving ADA discrimination claims. See, e.g., C.R. Eng., 644 F.3d at 1048-50; Taylor, 184 F.3d at 313-15. These cases also instruct us in evaluating the adequacy of requests for accommodation underlying retaliation claims, principally because an employee must engage in protected activity to prosecute a retaliation claim. And an inadequate request for an accommodation — one that does not trigger an employer's duty to provide a reasonable accommodation or participate in the "interactive process" of finding an appropriate accommodation — can never constitute protected activity. See Smith v. Midland Brake, Inc., 180 F.3d 1154, 1171 (10th Cir. 1999) ("In general, the interactive process must ordinarily begin with the employee providing notice to the employer of the employee's disability and any resulting limitations....").
We conclude that, viewing the evidence in the light most favorable to Foster, a reasonable jury could interpret Foster's comments at the April 3 meeting as an adequate request for accommodation — one direct and specific enough to put Mountain Coal on notice that he was requesting an accommodation for his neck injury. Therefore, summary judgment on this issue is inappropriate.
Foster argues that his April 3 request "adequately conveyed his desire for accommodation for his disability. Cooperation was requested in conjunction with his stated
Foster's deposition testimony recounting the April 3 meeting could be clearer. But at the summary-judgment stage — taking all inferences from the evidence in Foster's favor — his testimony is enough. A reasonable jury could conclude that, after being suspended, Foster asked for Mountain Coal's cooperation with an upcoming surgery and associated recovery. Mountain Coal argues that Foster's request failed to provide it notice that he was requesting an accommodation, but a reasonable jury could conclude otherwise given Mountain Coal's interest in obtaining Foster's return-to-work form for a known neck injury. Our circuit does not require Foster to use "the magic words `reasonable accommodation.'" C.R. Eng., 644 F.3d at 1049. Foster certainly didn't use those magic words here. But he said enough to survive summary judgment on the adequacy issue.
The cases Mountain Coal cites to support its argument that Foster's request for cooperation to deal with an upcoming surgery was inadequate are unpersuasive. Initially, Mountain Coal relies upon, and the district court found persuasive, Freadman v. Metropolitan Property & Casualty Insurance Co., 484 F.3d 91 (1st Cir. 2007). In Freadman, an employee told her direct supervisor that she "needed to take some time off because [she was] starting not to feel well." 484 F.3d at 103 (alteration in original) (emphasis omitted). The First Circuit concluded that this request lacked the necessary specificity because she failed to specify "when she would need that time off." Id. at 104 (emphasis in original). But Foster's comments are distinguishable from the Freadman employee's comments because — giving Foster the benefits of the evidence and inferences — Foster sought cooperation (an accommodation) to get his surgery and recovery "took care of." In this way, Foster's request was far more specific than asking for "time off" at some uncertain, future date. See id.
Also in support of its inadequate-request argument, Mountain Coal cites EEOC v. Product Fabricators Inc., 763 F.3d 963 (8th Cir. 2014). In Product Fabricators, the Eighth Circuit concluded that an employee had inadequately requested an accommodation by simply telling his supervisor about his painful left shoulder "and that he was going to request surgery." Id. at 971. The employee also testified that he "may have spoken with [a different supervisor] about how much time he could take off for surgery." Id. Affirming the district court's grant of summary judgment for the employer, the Eighth Circuit concluded that the employee's testimony, "at best, demonstrates that [the employer] was aware of [the employee's] shoulder trouble, but it does not indicate that [the employee] actually requested time off for his surgery as an accommodation." Id. The Eighth Circuit also found it important that the employee had not met with his doctor to discuss surgery until eight days after his termination and was not formally assessed for surgery until a month after his termination. Id.
In contrast, Mountain Coal knew from Foster's comments on April 3 (several days before terminating his employment) that he was planning for a certain, imminent
Finally, Mountain Coal relies on an unpublished district-court opinion, Schlect v. Lockheed Martin Corp., No. 11-cv-03072-RM-BNB, 2014 WL 4819006 (D. Colo. Sept. 29, 2014) (unpublished). In Schlect, an employee alleged that she had requested an accommodation by sending an e-mail to her employer, stating: "My concern is that I need further surgery." Id. at *3. The district court concluded that "a reference to a concern for a need for a future surgery is simply not the equivalent of having a disability and requesting an accommodation for that disability." Id. at *4. Here, Foster did not communicate a "concern for a need for a future surgery." Id. Rather, as mentioned, he communicated his need to have retraining rescheduled because he had a scheduled appointment, at which he said he would be scheduling surgery. As far as Mountain Coal then knew, Foster's appointment with Dr. Dwyer was a mere formality to schedule a surgery that Foster and Dr. Dwyer had already concluded was necessary. Simply put, giving Foster the benefit of the evidence and inferences from it, we conclude that Foster's comments at the April 3 meeting advised Mountain Coal that he needed to take care of his surgery and to recover from it. In this regard, he asked for Mountain Coal's cooperation.
We conclude that a reasonable jury interpreting Foster's April 3 comments could find that Foster's comments "inform[ed] [Mountain Coal] of the need for an adjustment due to a medical condition." Zivkovic, 302 F.3d at 1089; see Calero-Cerezo, 355 F.3d at 23 (noting that to be adequate, requests for accommodation must be "sufficiently direct and specific, giving notice that [the employee] needs a special accommodation" (quotation marks omitted)). Summary judgment on this issue is therefore inappropriate.
Mountain Coal does not contest that Foster made an adequate request for accommodation on April 11 during his phone conversation with Kunde. This is understandable because Foster read to Kunde Dr. Funk's letter written that day, opining that Foster would likely need surgery and declaring Foster disabled from his current occupation.
Because the parties agree that Foster experienced an adverse employment action, the final element Foster must show to support his prima facie case of ADA retaliation is that his engaging in protected activity was causally related to his termination. Our cases establish that the temporal proximity between Foster's protected activity (requests for accommodation) and his termination from employment suffice to establish this causal connection.
Foster and Mountain Coal disagree about whether evidence of temporal proximity between a protected activity and an adverse employment action, standing alone, is sufficient for a plaintiff to satisfy his burden of showing causation at the prima facie stage. Foster contends that the temporal proximity between his requests for accommodation and his later termination "is sufficient to establish causation." Appellant's Opening Br. at 35 (citing Annett v. Univ. of Kan., 371 F.3d 1233, 1239-40
In this case, we need not determine the extent to which Nassar alters a plaintiff's burden to prove causation in his prima facie case of ADA retaliation. In Ward v. Jewell, 772 F.3d 1199 (10th Cir. 2014), we discussed Nassar's impact on the McDonnell Douglas framework. Ward, 772 F.3d at 1203. Consistent with our precedent, we held that where a considerable length of time has elapsed between a protected activity and an adverse employment action, a plaintiff wishing to survive summary judgment must "present `additional evidence' tying the adverse employment actions to [the plaintiff's protected activity]." Id. (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)); see Anderson, 181 F.3d at 1179 (noting that where three months elapsed between the protected activity and the adverse employment action, "the plaintiff must rely on additional evidence beyond temporal proximity to establish causation"). Citing Nassar, we noted in Ward that "[t]he Supreme Court has likened this burden to a showing of `but-for causation.'" Ward, 772 F.3d at 1203 (quoting Nassar, 133 S.Ct. at 2533).
Ward leaves intact our precedent holding that an ADA retaliation plaintiff may rely solely on temporal proximity to show causation during the prima facie stage of the McDonnell Douglas framework where his protected activity is closely followed by an adverse employment action. See Anderson, 181 F.3d at 1179 ("[W]e have held that a one and one-half month period between protected activity and adverse action may, by itself, establish causation. By contrast, we have held that a three-month period, standing alone, is insufficient to establish causation." (citations omitted)); Burrus v. United Tel. Co. of Kan., Inc., 683 F.2d 339, 343 (10th Cir. 1982) ("The causal connection may be demonstrated by evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action."). Therefore, Nassar has not altered the burden a plaintiff bears in supporting the causation element of a prima facie case of ADA retaliation. Because the purported protected activity here occurred mere days or even hours before the adverse employment action, we conclude that Foster can show causation at the prima facie stage solely with evidence of temporal proximity.
The district court concluded that Foster did not raise a genuine issue of material fact about whether his April 3 request for accommodation caused his termination. Specifically, the district court concluded that Foster's April 3 request was not "direct and specific" enough to put Mountain Coal on notice of a needed accommodation "because Mr. Foster did not state that he had actually scheduled surgery or indicate how many days of leave he would need and when he would need to
Citing Clark County School District v. Breeden, 532 U.S. 268, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001), Mountain Coal alternatively argues that even if temporal proximity is sufficient, it proceeded along previously contemplated lines of discipline when it terminated Foster's employment, thus disproving Foster's causation evidence. We disagree.
In Breeden, the Supreme Court considered whether an employee could maintain a Title VII retaliation claim when the employee had filed suit after obtaining an EEOC right-to-sue letter (protected activity) and had been transferred to another position shortly thereafter (adverse employment action). Id. at 272, 121 S.Ct. 1508. The employee's sole evidence of causation was the temporal proximity between her protected activity and the adverse employment action. Id. The employee's supervisor, however, had mentioned contemplating the potential transfer before the supervisor ever learned of the employee's lawsuit. Id. at 271-72, 121 S.Ct. 1508. The Supreme Court concluded that "[e]mployers need not suspend previously planned [adverse employment actions] upon [encountering an employee's protected activity], and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality." Id. at 272, 121 S.Ct. 1508.
Here, by contrast, Mountain Coal did not proceed under previously contemplated lines of discipline. It suspended Foster before he made his April 3 request and then fired him afterward. Mountain Coal's contemplated discipline varied. Thus, Breeden is inapposite. Moreover, Breeden may well prove inapposite for another reason, too. We see a genuine issue of material fact about why Mountain Coal suspended Foster. Mountain Coal says that it did so because Foster lied about having provided a return-to-work form. Disagreeing with this, Foster says that Mountain Coal suspended him for obtaining a return-to-work form from Dr. Funk, who had never seen him for his neck injury. If a jury credits Foster's account of his suspension, that would mean that Mountain Coal suspended Foster for one reason (getting a form from the wrong doctor) and terminated his employment for another (lying about providing a return-to-work form). Then Breeden would not help Mountain Coal since Mountain Coal would obviously not have proceeded along previously contemplated lines of discipline — it would have suspended Foster for one reason and terminated him for a different reason.
Thus, we conclude that summary judgment is improper as to the causation prong of Foster's April 3 retaliation claim.
If Mountain Coal had terminated Foster by the time he made his April 11 request for accommodation during his telephone call with Kunde, Mountain Coal obviously would not have terminated him for
The district court held that Foster could not maintain an ADA retaliation claim against Mountain Coal based on his April 11 request for an accommodation because the court concluded that Foster had failed to raise a genuine issue of material fact about the accuracy of the Mountain Coal managers' testimony that they had terminated Foster on April 9. In reaching this conclusion, the district court did not fully consider the evidence by which a jury could disbelieve the managers' account of an April 9 termination. For instance, everyone agrees that Foster's direct supervisor, Kunde, had not known about Foster's termination when Foster called Kunde on April 11.
In addition, we agree with Foster that a reasonable factfinder could find that Mountain Coal's termination letter, which it dated April 11 and made retroactive
A reasonable jury could find that Kunde's ignorance of Foster's termination, as well as the termination letter's carrying an effective date of April 9, which might relieve Mountain Coal of liability, could give rise to a reasonable inference that Mountain Coal knew of the April 11 request before drafting and sending the April 11 letter. Therefore, summary judgment on this issue is inappropriate.
Having concluded that summary judgment is improper with regard to Foster's prima facie case of retaliation for both his April 3 and April 11 requests, the McDonnell Douglas framework shifts the burden
Mountain Coal argues that it has carried its burden of production by showing that "Foster was terminated for lying about having provided an earlier Mountain Coal Return-To-Work form when, in fact, he had provided no such form." Appellee's Resp. Br. at 45. Foster does not contest that this testimony, if true, would suffice as a legitimate, non-discriminatory basis for termination. Instead, Foster disputes the truth of Mountain Coal's proffered reason for termination, arguing that it is mere pretext. Therefore, we continue to the third and final stage of our analysis.
The last step in the McDonnell Douglas framework shifts the burden of production back to Foster to show that Mountain Coal's stated justification for his termination was pretextual. Picture People, 684 F.3d at 988.
"[A] plaintiff demonstrates pretext by showing either that a discriminatory reason more likely motivated the employer or that the employer's proffered explanation is unworthy of credence." Zamora v. Elite Logistics, Inc., 478 F.3d 1160, 1166 (10th Cir. 2007). "In establishing pretext, an employee can show the employer's proffered reason was so inconsistent, implausible, incoherent, or contradictory that it is unworthy of belief." Piercy v. Maketa, 480 F.3d 1192, 1200 (10th Cir. 2007) (quotation marks omitted).
With regard to the pretext step of the McDonnell Douglas framework, we address both Foster's April 3 claim and April 11 claim together, concluding that a reasonable jury could disbelieve Mountain Coal's proffered reason for Foster's termination.
We conclude that a reasonable jury could find that Mountain Coal's proffered reason for Foster's termination is unworthy of belief given Mountain Coal's inconsistent reasons for terminating Foster. Viewing the evidence in the light most favorable to Foster, we see a genuine issue of material fact about the reason for Foster's termination. Langrand and Miller testified that Mountain Coal terminated Foster's employment because Foster lied about providing White the first return-to-work form. But Jensen testified that Mountain Coal terminated Foster's employment because Foster's return-to-work form "didn't have the right date for his release and stuff on it." Appellant's App. vol. 3 at 514. Mountain Coal argues on appeal that Jensen's contradictory testimony is insignificant and that "[a]lthough his testimony might have been clearer, he subsequently clarified the reason for Foster's termination" on both direct and cross examination. Appellee's Resp. Br. at 51. But a reasonable jury could hold Jensen to the reason he first gave for terminating Foster: an incorrect date on Foster's return-to-work form.
A reasonable jury could find this inconsistency, coupled with the termination letter's disputed effective date, sufficient to infer that Mountain Coal's proffered reason for terminating Foster's employment was pretext because it is so inconsistent and contradictory as to be unworthy of belief.
The district court erred in granting Mountain Coal's motion for summary judgment with respect to Foster's ADA retaliation claims. We conclude that a reasonable jury could find that Foster established a prima facie case of retaliation with respect to both his April 3 and April 11 purported requests for accommodation. We further conclude that a reasonable jury could find that Mountain Coal's asserted basis for terminating Foster's employment was pretext. We therefore reverse the district court's order granting Mountain Coal's motion for summary judgment with respect to Foster's ADA retaliation claims and remand for further proceedings.
