Tesone v. Empire Marketing Strategies ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 5, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
JONELLA TESONE,
Plaintiff - Appellant,
v. No. 20-1093
(D.C. No. 1:17-CV-02101-MEH-KLM)
EMPIRE MARKETING STRATEGIES, (D. Colo.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before HARTZ, KELLY, and EID, Circuit Judges.
_________________________________
Jonella Tesone appeals the district court’s order granting summary judgment in
favor of Empire Marketing Strategies (Empire) on her claim of disability
discrimination. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
Ms. Tesone was hired by Empire in 2012 as a Produce Retail Sales
Merchandiser, which involved changing or resetting retail displays in grocery stores.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
In October 2016, she was assigned to complete a reset at an out-of-town location.
Because Ms. Tesone believed the reset would require long hours, she extended her
stay for an additional night; however, she failed to obtain Empire’s required approval
for the additional overnight stay.
“Shortly after the trip, [Empire] met with Ms. Tesone to discuss the
unapproved October hotel stay and general performance issues.” Tesone v. Empire
Mktg. Strategies, 942 F.3d 979, 985 (10th Cir. 2019) (internal quotation marks
omitted). During this meeting, Ms. Tesone stated that a lifting limitation negatively
impacted her job performance and Empire requested a doctor’s note documenting the
limitation. When no note was forthcoming, Empire renewed its request at least four
times. Eventually, on February 16, 2017, Ms. Tesone provided a letter from
Dr. Brian Manjarres, a doctor with whom she had neither met nor consulted before
obtaining the letter. Dr. Manjarres stated “Ms. Tesone ‘has certain limitations related
to muscle weakness’ and ‘chronic lower back pain,’” and he “‘recommended the
following accommodations: 1) No lifting over head 2) Can not [sic] lift spatially in
front of her more than 15 pounds.’” Id. (brackets omitted).
“Between December 2016 and February 2017, [Empire] spoke with
Ms. Tesone multiple times about various workplace issues, including her
communication with coworkers.” Id. at 985-86 (internal quotation marks omitted).
“On February 27, 2017, [Empire] terminated Ms. Tesone’s employment, citing
consistent violations of company policies.” Id. at 986 (internal quotation marks
omitted).
2
In August 2017, Ms. Tesone filed suit against Empire and two of its employees
for: (1) disability discrimination under the Americans With Disabilities Act (ADA);
(2) interference with contract and prospective business advantage; and (3) intentional
infliction of emotional distress. Following dismissal of the interference and
intentional infliction claims, Empire moved for summary judgment on the ADA
claim. The district court granted the motion on the grounds that “Ms. Tesone
presented no expert medical evidence that any of her major life activities have been
substantially limited by her alleged disability, and therefore would not be able to
present evidence to establish a prima facie case for disability discrimination.” Id. at
997 (citation, brackets, and internal quotation marks omitted).
On appeal, we held the district court’s “ruling was legally erroneous because
expert medical evidence is not required to establish a disability in all ADA cases,”
id., and remanded the case for the court to “perform [a] case-specific analysis to
determine whether expert testimony is necessary to establish the particular disability
alleged here,” id. at 999. At the same time, we affirmed the denial of Ms. Tesone’s
motion to extend the deadline to disclose an expert witness. Id. at 989 (“Because
Ms. Tesone has not shown that she made diligent efforts to meet the expert disclosure
deadline and because she provides no explanation for her belated motion, . . .
[t]he . . . court did not abuse its discretion in denying her motion.”).
On remand, the district court found that Ms. Tesone’s “only evidence of her
alleged statutory disability is [Dr. Manjarres’s] note, which reflects that she has
limitations related to muscle weakness and chronic lower back pain.” Aplt. App.,
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Vol. 2 at 415 (ellipsis and internal quotation marks omitted) (emphasis added). For
its case-specific analysis, the court “presumed” the note was admissible,” id., but
found it was insufficient to establish that Ms. Tesone’s “alleged lifting limitation
caused a substantial limitation of a major life activity,” id. at 411, and thus granted
summary judgment. This appeal followed.
II
“We review the district court’s grant of summary judgment de novo, applying
the same standards that the district court should have applied. In doing so, we
consider the evidence in the light most favorable to the non-moving party.” Tesone,
942 F.3d at 994 (citation, brackets, and internal quotation marks omitted). “The
court shall grant summary judgment 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).
III
“The ADA . . . requires proof that the plaintiff: (1) is a disabled person as
defined by the ADA; (2) is qualified, with or without reasonable accommodation, to
perform the essential functions of the job held or desired; and (3) suffered
discrimination by an employer or prospective employer because of that disability.”
Tesone, 942 F.3d at 995 (internal quotation marks omitted). “[T]he first element of a
prima facie case of discrimination . . . requires the plaintiff to meet the statutory
definition of ‘disability’ in 42 U.S.C. § 12102(1).” Id. “When the claim is for
discrimination based on an actual disability, the plaintiff must show ‘a physical or
4
mental impairment that substantially limits one or more major life activities.’” Id.(quoting § 12102(1)(A)); see also 29 C.F.R. § 1630.2(j)(1)(ii) (“An impairment is a
disability within the meaning of [the ADA] if it substantially limits the ability of an
individual to perform a major life activity as compared to most people in the general
population.”). While “[e]xpert medical testimony may be used to establish a
plaintiff’s disability . . . no language in the ADA or implementing regulations states
that medical testimony is required.” Tesone, 942 F.3d at 996 (brackets and internal
quotation marks omitted). But this does not mean a plaintiff can defeat summary
judgment without coming forward with some evidence (lay or expert) that she has a
physical or mental impairment that substantially limits one or more major life
activities.
IV
According to Ms. Tesone, the district court “us[ed] outmoded and overly-
restrictive guidance” in its analysis of the evidence to determine whether she had a
physical impairment that substantially limited one or more major life activities (the
first element of prima facie case for disability discrimination). Aplt. Opening Br. at
2. But we need not reach this issue because the only evidence put forward by
Ms. Tesone was from Dr. Manjarres, who was not timely disclosed as an expert
witness. 1 See Tesone, 294 F.3d at 989.
1
Because the parties had a fair opportunity to address whether summary
judgment was proper on the grounds that Dr. Manjarres was not timely disclosed as
an expert witness, we may affirm on this alternate ground. See Alfaro-Huitron v.
Cervantes Agribusiness, 982 F.3d 1242, 1249 (10th Cir. 2020).
5
Ms. Tesone argues that Dr. Manjarres’s letter is not an expert opinion subject
to the disclosure requirements of Fed. R. Civ. P. 26(a)(2); rather, she maintains it can
be considered as a lay opinion based on his personal knowledge and observations as
her treating physician. A witness who is not testifying as an expert may offer
testimony in the form of an opinion, but only where the opinion is “rationally based
on the witness’s perception[,] . . . helpful to clearly understanding the witness’s
testimony[,] . . . and . . . not based on scientific, technical, or other specialized
knowledge.” Fed. R. Evid. 701 (emphasis added). Plainly, Dr. Manjarres’s letter is
based on his scientific, technical, or other specialized knowledge as a physician, and
therefore Ms. Tesone’s argument lacks merit.
Without Dr. Manjarres’s letter, Ms. Tesone had no evidence from which she
could arguably establish the first element of a prima facie case. Therefore, the
district court properly granted summary judgment.
V
The judgment of the district court is affirmed.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
6