Neri v. Board of Education Albuquerque ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 14, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
DANIELLE L. NERI,
Plaintiff - Appellant,
v. No. 20-2088
(D.C. No. 1:19-CV-00008-JCH-SCY)
BOARD OF EDUCATION FOR (D. N.M.)
ALBUQUERQUE PUBLIC SCHOOLS;
CYNTHIA HOPPMAN,
Defendants - Appellees.
------------------------------
UNITED STATES OF AMERICA,
Amicus Curiae.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before MATHESON, BRISCOE, and CARSON, Circuit Judges.
_________________________________
Danielle Neri, proceeding pro se, appeals from the grant of summary judgment
to the defendants, the Board of Education of Albuquerque Public Schools and
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Cynthia Hoppman (collectively, “APS”), in her suit under the Americans with
Disabilities Act (ADA), 42 U.S.C. §§ 12111-12117. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm in part and reverse in part for further proceedings.
BACKGROUND
Mrs. Neri worked for APS as a special education math teacher for several
years. Starting in the 2013-2014 school year, however, she was chosen to fill a new
position as the Individualized Educational Program (IEP) Teacher at a high school in
Albuquerque with a large number of special-education students. As the IEP Teacher,
her duties included ensuring that the school met federal standards for special
education; creating procedures for IEPs; training teachers on IEP requirements; and
facilitating and conducting meetings with students, parents, teachers, and service
providers regarding students’ IEPs. Mrs. Neri’s first two school years as the IEP
Teacher were uneventful.
Things changed in the 2015-2016 school year. Mrs. Neri asserts that she “was
under a yearlong attack, a group hunt orchestrated by” her supervisor, Ms. Hoppman.
Aplt. Opening Br. at 18. “This attack was not so obvious to the observer, but it was
to Mrs. Neri.” Id. “Ms. Hoppman would change the requirements of the IEP teacher
position[,] even procedures they had come up with, that had been proven to work.”
Id. (footnote omitted). “Ms. Hoppman sought to create a false paper trail showing
Mrs. Neri was not doing her job” by sending e-mail messages inquiring as to the
status of various IEPs. Id. One time, she sent an e-mail inquiring as to Mrs. Neri’s
whereabouts, after the end of the duty day.
2
On April 14, 2016, Mrs. Neri led an IEP meeting for a student whose parent
did not speak English. Daniel Kegler, a teacher attending the meeting, had not
arranged for an interpreter to attend. When Mrs. Neri realized there was no
interpreter, she cancelled the meeting. Mr. Kegler became frustrated. As Mrs. Neri
describes, he “stood up with such force that his chair flew into the wall behind him,
he then grabbed it and slammed it into the table, then slammed his laptop shut with
his hand about 18 inches from Mrs. Neri’s face.” Id. at 19-20.
The April 14 incident frightened Mrs. Neri and triggered her Post-Traumatic
Stress Disorder (PTSD). She told Ms. Hoppman of the incident, her feeling that
Mr. Kegler had assaulted her, and that he triggered her PTSD. Ms. Hoppman
interviewed other staff members who had been in the meeting, who reported that
Mr. Kegler had not been violent. Ms. Hoppman told Mrs. Neri that she did not think
the incident was a big deal.
The next day, April 15, Mrs. Neri had another IEP meeting involving
Mr. Kegler. Ms. Hoppman sent a head teacher to attend the meeting with Mr. Kegler.
Initially Mrs. Neri thought the head teacher was there to support her in case
Mr. Kegler again lashed out. But during the meeting, she learned that Ms. Hoppman
had sent the head teacher to support Mr. Kegler because she had just given him some
bad news. Mrs. Neri believed that Ms. Hoppman had minimized her feelings about
the April 14 incident, and she felt betrayed, unsupported, and unsafe.
Mrs. Neri took leave under the Family and Medical Leave Act (FMLA) from
April 26 to May 9, 2016. Her leave was supported by a note from her therapist,
3
licensed clinical social worker Billie Poteet. When Mrs. Neri returned to work, with
only nine days left in the school year, she attempted to meet with Ms. Hoppman to
discuss potential accommodations for her PTSD, but Ms. Hoppman avoided her.
On May 23, 2016, Ms. Hoppman conducted Mrs. Neri’s year-end evaluation.
Mrs. Neri felt that the evaluation was going well, until Ms. Hoppman told her that
she (Ms. Hoppman) was transferring her (Mrs. Neri) to a special education math
teacher position because Mrs. Neri “could not handle the contention of that room”
and Ms. Hoppman “didn’t want to trigger [Mrs. Neri] again.” R. Vol. 1 at 268.
Mrs. Neri considered the transfer to be a demotion. That night, she sent
Ms. Hoppman an e-mail protesting the decision. Ms. Hoppman responded by
identifying several areas in which Mrs. Neri had performed deficiently as the IEP
Teacher during the 2015-16 school year, allegedly leading to her decision to transfer
Mrs. Neri. She also stated, “[o]n a personal level, I am concerned about your health.
I have seen your reactions to stressful situations become more apparent and frequent.
The comments you made in your email exhibit a paranoia that you are being isolated
and targeted.” Id. Vol. 2 at 79.
Mrs. Neri took an unpaid personal leave of absence for the 2016-2017 school
year. On March 8, 2017, she submitted her resignation to APS.
Mrs. Neri then filed suit in state court, bringing claims under the ADA as well
as state-law claims. The defendants removed the case to federal court. After
discovery, the defendants moved for summary judgment on all claims. Mrs. Neri
opposed the motion. After hearing oral arguments, the magistrate judge
4
recommended that the district court grant summary judgment to the defendants on the
ADA claims, but remand the state-law claims to state court. Mrs. Neri timely
objected. The district court accepted the recommendation, granting summary
judgment to the defendants on the ADA claims and remanding the state-law claims.
Mrs. Neri appeals. 1
DISCUSSION
“We review the grant of summary judgment de novo applying the same
standard as the district court.” Levy v. Kan. Dep’t of Soc. & Rehab. Servs., 789 F.3d
1164, 1168 (10th Cir. 2015) (internal quotation marks omitted). 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).
Because Mrs. Neri proceeds pro se, we construe her filings liberally. See Gallagher
v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009).
I. Discrimination
The ADA prohibits covered entities from “discriminat[ing] against a qualified
individual on the basis of disability in regard to job application procedures, the
hiring, advancement, or discharge of employees, employee compensation, job
1
Mrs. Neri filed a Fed. R. Civ. P. 59(e) motion on the same day she filed her
notice of appeal as to the final judgment. The notice of appeal ripened as to the final
judgment when the district court denied her Rule 59(e) motion. See Fed. R. App. P.
4(a)(4)(B)(i). But because Mrs. Neri did not file a new or amended notice of appeal
addressing the denial of her Rule 59(e) motion, this appeal is limited to the final
judgment. See Fed. R. App. P. 4(a)(4)(B)(ii); Husky Ventures, Inc. v. B55 Invs., Ltd.,
911 F.3d 1000, 1009-10 (10th Cir. 2018).
5
training, and other terms, conditions, and privileges of employment.” 42 U.S.C.
§ 12112(a). “[T]he term ‘discriminate against a qualified individual on the basis of
disability’ includes . . . limiting, segregating, or classifying a job applicant or
employee in a way that adversely affects the opportunities or status of such applicant
or employee because of the disability of such applicant or employee.” Id.§ 12112(b)(1).
The district court proceeded under the burden-shifting framework first
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). 2
Under that framework, Mrs. Neri must establish a prima facie case, which requires
her to show she “(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
2
It is not clear that the McDonnell Douglas framework is appropriate in this
case. That framework applies when a plaintiff does not present direct evidence of
discrimination. See Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 995 (10th Cir.
2019). Mrs. Neri, however, presented evidence that when Ms. Hoppman informed
her of the transfer, Ms. Hoppman stated that the transfer was to avoid triggering
Mrs. Neri’s PTSD. If believed by a factfinder, this statement would be direct
evidence of discrimination on the basis of Mrs. Neri’s PTSD. See id. (“Oral or
written statements on the part of a defendant showing a discriminatory motivation
may . . . constitute direct evidence of discrimination.” (brackets and internal
quotation marks omitted)).
The parties, however, do not argue that the district court applied the incorrect
framework. And even considering the case through a direct-evidence lens, to proceed
with an ADA discrimination claim Mrs. Neri must show that she is a “qualified
individual” with a “disability,” 42 U.S.C. § 12112(a), and that Ms. Hoppman’s
decision to limit or classify her “adversely affect[ed] [her] opportunities or status . . .
because of [her] disability,” id. § 12112(b)(1). Thus, regardless of the McDonnell
Douglas framework, Mrs. Neri must still present sufficient evidence of a disability
and an adverse action to survive summary judgment.
6
job held or desired; and (3) suffered discrimination by an employer or prospective
employer because of that disability.” EEOC v. C.R. Eng., Inc., 644 F.3d 1028, 1037-
38 (10th Cir. 2011) (internal quotation marks omitted). To satisfy the third prong, “a
plaintiff generally must show that [s]he has suffered an adverse employment action
because of the disability.” Id. at 1038 (internal quotation marks omitted). The
parties and the district court focused on the first and third prongs; there was no
dispute as to the second prong. The district court determined that Mrs. Neri failed to
establish that the transfer was an adverse employment action. It therefore did not
need to consider whether she showed that she has a disability.
As explained below, there are genuine issues of material fact as to whether the
transfer constituted an adverse employment action. And although we may affirm on
other grounds supported by the record, see Williams v. FedEx Corp. Servs., 849 F.3d
889, 899 (10th Cir. 2017), there also are genuine issues of material fact as to whether
Mrs. Neri has a “disability” as that term is defined by the ADA.
A. “Disability” as Defined by the ADA
To proceed with her ADA discrimination claim, Mrs. Neri must establish that
she has a “disability.” She may do this by showing she (1) has “a physical or mental
impairment that substantially limits one or more of [her] major life activities”;
(2) has “a record of such an impairment”; or (3) was “regarded as having such an
impairment.” 42 U.S.C. § 12102(1). In this case, the parties focused on the first and
7
third definitions of disability, actual impairment and “regarded as having” an
impairment. 3
1. Actual Impairment
To proceed based on an actual impairment, an ADA plaintiff must (1) show
she has “a recognized impairment”; (2) “identify one or more appropriate major life
activities”; and (3) “show the impairment substantially limits one or more of those
activities.” Felkins v. City of Lakewood, 774 F.3d 647, 650 (10th Cir. 2014) (internal
quotation marks omitted). Mrs. Neri presented her therapist’s testimony to establish
that she has been diagnosed with PTSD. And she asserts that her “PTSD[,] when
active, substantially limits major life activities of sleeping, thinking, concentrating,
[performing] manual tasks, speaking, breathing, communicating, and caring for
herself, as well as it substantially limits major bodily functions of the brain and
respiratory systems.” R. Vol. 2 at 13. The issue thus becomes whether she has
adequately established that her PTSD substantially limits at least one major life
activity.
The ADA does not require expert testimony in every case. See Tesone v.
Empire Mktg. Strategies, 942 F.3d 979, 996 (10th Cir. 2019). “Rather, whether
medical evidence is necessary to support a disability discrimination claim is a
3
On appeal, Mrs. Neri asserts that she also has a record of PTSD. But it does
not appear that she adequately argued that issue in the district court. See R. Vol. 2 at
239 (Report & Recommendation) (“The parties do not address whether Plaintiff has a
record of impairment. Instead, their arguments focus on whether Plaintiff has an
actual impairment or whether Defendants regarded her as having an impairment.”).
We therefore do not address the issue.
8
determination that must be made on a case-by-case basis.” Id. (brackets and internal
quotation marks omitted). “[A] lay witness is competent to testify concerning those
physical injuries and conditions which are susceptible to observation by an ordinary
person.” Felkins, 774 F.3d at 652 (internal quotation marks omitted). But “[w]here
injuries complained of are of such character as to require skilled and professional
persons to determine the cause and extent thereof, they must be proved by the
testimony of medical experts.” Id. (internal quotation marks omitted).
Accordingly, Mrs. Neri could testify about the physical and mental symptoms
she experienced. See id. But she is not competent to testify that those symptoms
were caused by PTSD or to opine on the physical or mental effects of PTSD
generally, “for those are clearly matters beyond the realm of common experience and
require the special skill and knowledge of an expert witness.” Id. (ellipsis and
internal quotation marks omitted). See Clancy v. Miller, 837 F. App’x 630, 635-36
(10th Cir. 2020) (requiring plaintiff to present expert testimony to link her PTSD to a
limitation on a major life activity), cert. denied, 209 L. Ed. 2d 537 (U.S. Apr. 5,
2021) (No. 20-7399). 4
We do not dispute that Mrs. Neri has provided sufficient evidence that she has
been diagnosed with PTSD. As stated, she offered her therapist, Ms. Poteet, as an
expert witness regarding that issue. But in her deposition, Ms. Poteet stated that the
4
An unpublished opinion generally is not binding, but the court may rely on it
for its persuasive value. See Fed. R. App. 32.1(a); 10th Cir. R. 32.1(A).
9
only expert opinion she would offer “is whether, in fact, [Mrs.] Neri has PTSD.”
R. Vol. 1 at 283. Mrs. Neri does not point to any opinion by Ms. Poteet linking any
of her alleged limitations to her PTSD. But it is that type of medical evidence that
she must present. 5 As in Felkins, “the failure of proof on which our decision turns is
that [the plaintiff] has not provided proper evidence that any limitation she may have
is caused by [her claimed condition].” 774 F.3d at 652-53.
Mrs. Neri relies on 29 C.F.R. § 1630.2, which provides that “[g]iven their
inherent nature, [some] types of impairments will, as a factual matter, virtually
always be found to impose a substantial limitation on a major life activity.”
29 C.F.R. § 1630.2(j)(3)(ii). “[I]t should easily be concluded that the following types
of impairments will, at a minimum, substantially limit the major life activities
indicated: . . . post-traumatic stress disorder . . . substantially limit[s] brain function
. . . .” Id. § 1630.2(j)(3)(iii). But we are not persuaded that in this case the general
provisions of § 1630.2(j)(3) overcome the need for expert medical evidence to
connect Mrs. Neri’s alleged symptoms to her PTSD.
Because Mrs. Neri did not present medical evidence to link her PTSD
diagnosis with her symptoms to establish that her PTSD substantially limits at least
5
In her summary-judgment response, Mrs. Neri supplied a letter from her
current psychiatrist, Stephanie Tucker, M.D., stating that at some unspecified time,
she had diagnosed Mrs. Neri with PTSD. But Mrs. Neri did not timely disclose
Dr. Tucker as an expert witness. Moreover, the letter does nothing more than offer a
diagnosis, which is not disputed; Dr. Tucker did not discuss any limitations caused
by Mrs. Neri’s PTSD.
10
one major life activity, we affirm the grant of summary judgment on claims based on
the actual impairment definition of “disability” under the ADA.
2. “Regarded As” Disabled
The ADA also defines “disability” as “regarded as having [a physical or
mental] impairment.” 42 U.S.C. § 12102(1)(C). This definition is satisfied “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). “[T]he only qualification for an impairment in a ‘regarded as’ claim
is that the impairment not be ‘transitory and minor.’” Adair v. City of Muskogee,
823 F.3d 1297, 1306 (10th Cir. 2016) (quoting § 12102(3)(B)). Thus, although
Mrs. Neri must present medical evidence to establish substantial limitations with
regard to actual impairment, she need not present such evidence to proceed under the
“regarded as” definition.
“[F]or a plaintiff alleging disability discrimination to show that the employer
regarded [her] as having an impairment, the plaintiff must show that (1) [s]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.” Id. Except where an impairment is transitory
and minor, “an individual is ‘regarded as having such an impairment’ any time a
covered entity takes a prohibited action against the individual because of an actual or
11
perceived impairment, even if the entity asserts, or may or does ultimately establish,
a defense to such action.” 29 C.F.R. § 1630.2(l)(2).
The record contains evidence that, if believed, would establish each of Adair’s
requirements for establishing a “regarded as” disability. First, Mrs. Neri presented
Ms. Poteet’s testimony that she has been diagnosed with PTSD. Second, record
evidence shows that her PTSD is not “transitory and minor.” See § 12012(3)(B)
(stating that “transitory” means the impairment has “an actual or expected duration of
6 months or less”). In a note to APS, Ms. Poteet described Mrs. Neri’s condition as
“chronic” and stated that she had treated Mrs. Neri since 2013. R. Vol. 2 at 97-98.
And other medical records also indicate Mrs. Neri was diagnosed with PTSD starting
in 2013. Third, Mrs. Neri’s testimony that she told Ms. Hoppman that Mr. Kegler
triggered her PTSD, and that Ms. Hoppman told her the transfer was to avoid
triggering her PTSD in the future, is evidence that Ms. Hoppman knew of and
perceived Mrs. Neri’s PTSD at the time of the transfer.
In similar circumstances, other circuit courts have held that it was
inappropriate to grant summary judgment on a “regarded as” claim. In Lewis v. City
of Union City, 934 F.3d 1169, 1173 (11th Cir. 2019), the plaintiff had suffered a
heart attack. When her employer, the police department, scheduled her for pepper
spray and Taser training, she expressed concern that her prior heart attack might
make her more susceptible than the average officer to injury from the training. Id. at
1174. The police department placed her on leave pending medical clearance before
terminating her employment. Id. at 1175-76. The Eleventh Circuit affirmed the
12
district court’s conclusion that the officer had not established that her heart
impairment substantially affected a major life activity, and therefore she could not
proceed under the actual impairment definition of “disability.” Id. at 1180-81. But
the court further held that her evidence was sufficient to proceed under a “regarded
as” theory. Id. at 1181-82. “[T]he department’s own stated reason for putting Lewis
on leave—that it feared for her safety in view of her heart condition—demonstrates
the department’s belief that Ms. Lewis’s medical condition set her apart from other
police officers.” Id. at 1181. Moreover, discussing interpretative guidance that
accompanies the regulations implementing the ADA, the court stated, “[w]hile not
binding, the guidance illustrates the common sense principle that an employer that
takes an adverse action because it fears the consequences of an employee’s medical
condition has regarded that employee as disabled.” Id. at 1182.
Similarly, in Silk v. Board of Trustees, 795 F.3d 698, 702 (7th Cir. 2015), the
plaintiff was an adjunct professor at a community college who underwent heart
surgery near the end of the spring semester. He then was assigned only two courses
for the fall semester, rather than the usual four courses. Id. at 701, 703. He testified
that a department chair stated that “we assigned [him] only two classes in the fall
because we didn’t think he was physically capable of handling them.” Id. at 708(brackets and internal quotation marks omitted). The department chair denied
making the remark, but the Seventh Circuit held that “if a jury credited Silk’s
testimony . . . , it could reach the conclusion that the statement constituted an
admission on the part of the College that it reduced Silk’s course load as the result of
13
a perceived impairment.” Id. Accordingly, the court held that summary judgment
was not appropriate. Id.Here, the district court did not resolve the “regarded as” issue because it held
that Mrs. Neri had failed to show an adverse employment action. But it noted that
“[a] ‘regarded-as’ disability requires a showing that the Defendants mistakenly
‘believe[] that a person has a physical impairment that substantially limits one or
more life activities,’ or Defendants mistakenly believe[] that an actual, nonlimiting
impairment substantially limits one or more major life activities.” R. Vol. 2 at 326
n.2 (quoting Lanman v. Johnson Cnty., 393 F.3d 1151, 1156 (10th Cir. 2004)).
Lanman, however, relied on Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999).
See Lanman, 393 F.3d at 1156. And Sutton was abrogated by the ADA Amendments
Act of 2008 (ADAAA). See Adair, 823 F.3d at 1305. As discussed in Adair, the
ADAAA changed the requirements of a “regarded-as” claim to move away from
showing substantial limitation. See id. at 1304-06. Thus, in addressing cases that
arise after the ADAAA, courts cannot indiscriminately quote cases such as Lanman
that rely on Sutton. 6
In sum, because Mrs. Neri has established a genuine issue of material fact as to
the “regarded as” definition of disability, we cannot affirm the grant of summary
judgment on that alternate ground.
6
In its discussion of the “regarded as” definition, APS relies on EEOC v.
BNSF Railway Co., 853 F.3d 1150 (10th Cir. 2017), which contains language similar
to Lanman. But BNSF Railway involved conduct that occurred before the effective
date of the ADAAA, and it applied pre-ADAAA law. See id. at 1155 n.2.
14
B. Adverse Employment Action
Mrs. Neri pointed to three potential adverse actions: (1) the transfer from IEP
Teacher to special education math teacher, (2) a hostile work environment, and
(3) constructive discharge. We hold that she created a genuine issue of material fact
regarding whether the transfer was a demotion. But we are not persuaded that a
reasonable factfinder could conclude that the school was an objectively hostile work
environment or that the conditions were so intolerable that she was constructively
discharged.
1. Transfer as a Demotion
Mrs. Neri challenges the district court’s conclusion that the transfer to the
math-teacher position was not a demotion. The district court relied on the facts that
the contract for APS teachers did not differentiate the IEP Teacher position, and that
Mrs. Neri would earn the same salary and receive the same medical and dental
benefits in both positions. But Mrs. Neri presented evidence that the skills and
responsibilities of the math teacher position differed from the IEP Teacher position.
Under these circumstances, we are persuaded that a reasonable factfinder could
conclude that the transfer was a demotion. We thus agree with Mrs. Neri that the
district court erred in granting summary judgment on this ground.
“The Tenth Circuit liberally defines the phrase ‘adverse employment action.’
Such actions are not simply limited to monetary losses in the form of wages or
benefits. Instead, we take a case-by-case approach, examining the unique factors
relevant to the situation at hand.” Sanchez v. Denver Pub. Schs., 164 F.3d 527, 532
15
(10th Cir. 1998) (citations and internal quotation marks omitted). “Conduct rises to
the level of adverse employment action when it constitutes a significant change in
employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change in
benefits.” Stinnett v. Safeway, Inc., 337 F.3d 1213, 1217 (10th Cir. 2003) (internal
quotation marks omitted). But “we will not consider a mere inconvenience or an
alteration of job responsibilities to be an adverse employment action.” Sanchez,
164 F.3d at 532 (internal quotation marks omitted). An employee’s positive or
negative feelings about a transfer do not play a role in the analysis. Id. at 532 n.6.
In Sanchez, we held that an elementary school teacher’s reassignment from
teaching fourth grade at one school to teaching second grade at a different school did
not qualify as an adverse employment action. Id. at 530, 532. Unlike in Sanchez,
however, Mrs. Neri was not being transferred from one classroom teaching position
to another, relatively similar classroom teaching position. Rather, she was being
transferred from the IEP Teacher position to a classroom teaching position.
We have recognized that a reassignment involving “a de facto reduction in
responsibility” and “a lesser degree of skill” can create a jury question as to whether
a transfer was a demotion. Stinnett, 337 F.3d at 1217; see also Hooks v. Diamond
Crystal Specialty Foods, Inc., 997 F.2d 793, 799 (10th Cir. 1993) (acknowledging
that a reassignment may be a demotion if “the employee can show that [s]he receives
less pay, has less responsibility, or is required to utilize a lesser degree of skill than
[her] previous assignment”), overruled on other grounds by Buchanan v. Sherrill,
16
51 F.3d 227, 229 (10th Cir. 1995) (per curiam). 7 This case presents a close question,
but we are persuaded that Mrs. Neri presented sufficient evidence for a factfinder to
conclude that the IEP Teacher position has different and greater responsibilities than
a special education math teacher.
During Mrs. Neri’s tenure as IEP Teacher, the primary duties were creating
IEPs and facilitating IEP meetings, rather than teaching students. She also was
tasked with helping to ensure that APS complied with federal law regarding students’
rights to education. It was the IEP Teacher who created procedures and taught the
other teachers with regard to the requirements. Further, APS’s IEP policy specified
only certain categories of employees could serve as APS’s representative in an IEP
meeting because only those individuals had the required knowledge about the
student, the curriculum, and the district’s resources. And the policy provided that
“[t]he individual assigned to serve as the Albuquerque Public Schools representative
in an IEP Team meeting shall have the authority to commit Albuquerque Public
Schools resources and shall be able to ensure that whatever services are described in
the IEP will be provided.” Suppl. R. Vol. 1 at 251. Such evidence is sufficient to
allow a reasonable jury to conclude that the IEP Teacher position required greater
7
The United States has submitted an amicus brief urging the court to allow
plaintiffs to bring an ADA discrimination claim based on a purely lateral transfer.
“The [plaintiffs] do not assert this argument, nor was it argued below, and we
therefore decline to address it.” Pueblo of Santa Ana v. Kelly, 104 F.3d 1546, 1558
n.15 (10th Cir. 1997).
17
skill and carried greater responsibility with regard to special education than a
classroom teaching position.
There also is evidence that the IEP Teacher position was equated to a head
teacher position. For example, a head teacher substituted for Mrs. Neri when she was
unavailable to attend an IEP meeting. In addition, defendants’ counsel informed
Mrs. Neri that “[i]t is APS’ understanding that . . . while you were in the system as a
special education teacher you shared the responsibilities of the head teacher.”
R. Vol. 2 at 38. It is a reasonable inference in favor of Mrs. Neri that a head teacher
position would be a more prestigious position than regular classroom teacher.
Accordingly, Mrs. Neri has established a genuine issue of material fact as to
whether her transfer was a demotion and therefore an adverse employment action.
2. Hostile Work Environment
Mrs. Neri alleges that Ms. Hoppman created a hostile work environment
throughout the 2015-2016 school year. To avoid summary judgment on a hostile
work environment claim, “a plaintiff must show that a rational jury could find that
the workplace is permeated with discriminatory intimidation, ridicule, and insult, that
is sufficiently severe or pervasive to alter the conditions of the victim's employment
and create an abusive working environment.” Payan v. United Parcel Serv., 905 F.3d
1162, 1171 (10th Cir. 2018) (internal quotation marks omitted). The environment
must have been “both objectively and subjectively hostile.” Id. “We assess the
objective severity of the harassment from the perspective of a reasonable person in
the plaintiff's position, considering all the circumstances.” Id. (emphasis and internal
18
quotation marks omitted). “In evaluating the circumstances, we consider such factors
as the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.” Id. (brackets and
internal quotation marks omitted).
Mrs. Neri complains about the following:
Ms. Hoppman continually harassed her throughout the 2015/2016 school
year; Ms. Hoppman changed her job’s expectations and benefits throughout
the 2015/2016 school year; in the April 14, 2016 IEP meeting Mr. Kegler
shoved his chair into the wall and slammed his laptop shut; Ms. Hoppman
told [her] that the April 14, 2016 incident was ‘no big deal’; and
Ms. Hoppman sent support for Mr. Kegler at the April 15, 2016 IEP
meeting.
R. Vol. 2 at 244-45. We agree with the district court that Mrs. Neri failed to show
that these incidents were either pervasive or severe enough to create an objectively
hostile work environment. Therefore, for substantially the reasons discussed by the
magistrate judge and the district court, we affirm the grant of summary judgment to
the defendants on the hostile work environment allegations.
3. Constructive Discharge
Mrs. Neri also challenges the ruling on constructive discharge. “Constructive
discharge occurs when the employer by its illegal discriminatory acts has made
working conditions so difficult that a reasonable person in the employee’s position
would feel compelled to resign.” Hiatt v. Colo. Seminary, 858 F.3d 1307, 1318
(10th Cir. 2017) (brackets and internal quotation marks omitted). “To establish
constructive discharge, a plaintiff must show that she had no other choice but to
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quit.” Id. (internal quotation marks omitted). “A finding of constructive discharge
must not be based only on the discriminatory act; there must also be aggravating
factors that make staying on the job intolerable.” James v. Sears, Roebuck & Co.,
21 F.3d 989, 992 (10th Cir. 1994). The employee’s “subjective views of the situation
are irrelevant”; “she must instead show the conditions of employment were
objectively intolerable.” Hiatt, 858 F.3d at 1318 (brackets and internal quotation
marks omitted).
In James, we recognized that “[a] perceived demotion or reassignment to a job
with lower status or lower pay may, depending upon the individual facts of the case,
constitute aggravating factors that would justify [a] finding of constructive
discharge.” 21 F.3d at 993. But although Mrs. Neri perceived the transfer to be a
demotion, she has not shown that a reasonable jury could find the conditions of the
math teacher position so “objectively intolerable” that she “had no other choice but to
quit.” Hiatt, 858 F.3d at 1318 (internal quotation marks omitted).
In James, for example, the employees “had a choice between two options: lose
benefits under early retirement; or continue to work while being harassed or moved
to jobs where unreachable quotas could be used as a pretext for firing them.” 21 F.3d
at 993. We noted that “[n]one of the Plaintiffs was offered a choice of continuing
work at the same pay or accepting the buy-out or early retirement.” Id. In contrast,
Mrs. Neri was offered a job making the same salary and carrying the same medical
and dental benefits that she would have had as the IEP Teacher. As we stated above,
it is a close question as to whether a jury could find the transfer was a demotion. The
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standard for constructive discharge is higher, however, and no reasonable jury could
conclude that the circumstances here rise to that level. See Hiatt, 858 F.3d at 1318
(concluding that the plaintiff failed to establish a constructive discharge, even though
she had been demoted); Tran v. Trs. of State Colls., 355 F.3d 1263, 1270-71
(10th Cir. 2004) (recognizing that “conduct which meets the definition of a ‘tangible
employment action’ or an ‘adverse employment action’ is not necessarily sufficient
to establish a constructive discharge because a constructive discharge requires a
showing that the working conditions imposed by the employer are not only tangible
or adverse, but intolerable”).
II. Retaliation
Mrs. Neri asserts that the district court erred in granting summary judgment on
her retaliation claim. It is not clear whether Mrs. Neri properly asserted a retaliation
claim; the magistrate judge stated that “[a]lthough Plaintiff has generally asserted
that Defendants retaliated against her, she does not bring a cognizable legal claim for
retaliation.” R. Vol. 2 at 254. But he went on to analyze the principles for retaliation
claims and recommend that the district court grant summary judgment to the
defendants because she had not shown that the transfer was an adverse employment
action. See id. at 255-56. The district court did not address retaliation.
In light of our decision that Mrs. Neri established a genuine issue of material
fact as to whether the transfer was a demotion, we vacate the grant of summary
judgment regarding retaliation. On remand, the district court may choose to examine
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whether Mrs. Neri properly asserted a retaliation claim before conducting further
proceedings on any such claim.
III. Failure to Accommodate
At a summary-judgment hearing before the magistrate judge, Mrs. Neri
asserted that APS had failed to accommodate her PTSD. The magistrate judge
recommended granting summary judgment on failure to accommodate because any
such claim (1) would be untimely, because it was not included in the complaint or the
summary-judgment briefing, (2) would fail, because Mrs. Neri did not provide
medical information to APS to start the interactive accommodation process, and
(3) was not adequately explained, because Mrs. Neri did not sufficiently set forth
what her requested accommodation—to feel supported—would entail.
In her objections, Mrs. Neri took issue with the conclusion that she did not
engage in the interactive process. The district court held, however, that “[e]ven if
Plaintiff is correct that that she requested an accommodation . . . the Magistrate Judge
found that her ADA claim for failure to accommodate should fail for two other
reasons,” namely untimeliness and failure to explain her requested accommodation.
Id. at 328. The district court agreed with the magistrate judge and overruled the
objections.
Before this court, Mrs. Neri again focuses on the conclusion that she did not
engage in the interactive process, and she also argues that she did explain her
requested accommodation. But she does not adequately challenge the district court’s
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determination that she did not timely bring a claim for failure to accommodate. 8 This
omission is fatal. “If the district court states multiple alternative grounds for its
ruling and the appellant does not challenge all those grounds in the opening brief,
then we may affirm the ruling.” Rivero v. Bd. of Regents, 950 F.3d 754, 763
(10th Cir. 2020).
CONCLUSION
The district court’s judgment is affirmed with regard to Mrs. Neri’s allegations
that APS discriminated against her because of an actual impairment, that she suffered
a hostile work environment and a constructive discharge, and that APS failed to
accommodate her PTSD. The judgment is reversed and remanded for further
proceedings with regard to her claim of discrimination by being demoted because
APS regarded her as being disabled and her claim of retaliation.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
8
The bare statement that the “[t]rial court erred when it determined that
Mrs. Neri’s failure to accommodate claim was untimely,” Aplt. Opening Br. at 2-3, is
not adequate briefing.
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