Nos. 11-2096, 11-2247
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant,
v.
TRICORE REFERENCE LABORATORIES,
Defendant-Appellee.
On Appeal from the United States District Court
for the District of New Mexico (1:09-cv-00956-JEC-DJS)
The Honorable John E. Conway, Presiding
PETITION OF PLAINTIFF-APPELLANT
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
FOR PANEL REHEARING OR REHEARING EN BANC
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P. DAVID LOPEZ
General Counsel
CAROLYN L. WHEELER
Acting Associate General Counsel
LORRAINE C. DAVIS
Assistant General Counsel
CORBETT L. ANDERSON
Attorney
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EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
131 M Street, N.E., 5th Floor
Washington, D.C. 20507
(202) 663-4579 (phone)
(202) 663-7090 (fax)
corbett.anderson@eeoc.gov
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TABLE OF CONTENTS
table of authorities....................................................................................................... iii
suggestion
for rehearing en banc........................................................................... 1
STATEMENT OF FACTS............................................................................... 2
ARGUMENT................................................................................................................................. 5
I. .... The
panel applied an incorrect prima facie case analysis and
........ overlooked
critical evidence in affirming summary judgment.................................... 5
II. ... The
panel contravened Supreme Court and this Court’s precedent
........ in
affirming the award of attorney’s fees. .................................................................... 11
III. .. The
panel decision allowing fees on this appeal has no basis in law
........ or
fact. ................................................................................................................................ 14
CONCLUSION............................................................................................................................ 15
CERTIFICATE
OF COMPLIANCE........................................................................................ C-1
CERTIFICATE
OF SERVICE.................................................................................................. C-2
ATTACHMENTS...................................................................................................................... A-1
Panel Opinion (8/16/12)
Excerpts from Appellant's Appendices
TABLE OF AUTHORITIES
Adamson v. Multi Community Diversified Servs., Inc.,
... 514 F.3d 1136 (10th Cir. 2008).................................................................... 8
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).......................... 1,
10, 11
Bergemann v. United States, 820 F.2d 1117 (10th Cir.
1987)......................... 13
Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978)...................... 2,
12
EEOC v. United Airlines, Inc.,
... __ F.3d __, 2012 WL 3871503 (7th Cir. Sept. 7, 2012)............................. 14
Fox v. Vice, 131 S. Ct. 2205 (2011)............................................................ 2,
11
Garrett v. Hewlett Packard Co., 305 F.3d 1210 (10th Cir.
2002)............ 1, 9, 10
Kirk v. City of Tulsa, Okla.,
... 72 F. App’x. 747, 2003 WL 21662097 (10th Cir. 2003)............................ 10
Lewis v. Commissioner, 523 F.3d 1272 (10th Cir. 2008)............................ 2,
15
Mitchell v. City of Moore, Okla., 218 F.3d 1190 (10th
Cir. 2000)............... 2, 12
Morgan v. Hilti, Inc., 108 F.3d 1319 (10th Cir. 1997)...................................... 8
Reeves v. Sanderson Plumbing Prods. Co., 530 U.S. 133
(2000)................ 1, 11
Roe v. Cheyenne Mountain Conference Resort, Inc.,
... 124 F.3d 1221 (10th Cir. 1994).................................................................. 12
Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir.
1999)................... 2, 14
Twilley v. Integris Baptist Med. Ctr., Inc.,
... 16 F. App’x. 923, 2001 WL 901102 (10th Cir. 2001)................................ 12
Wells v. Colorado Dep’t of Transp., 325 F.3d 1205 (10th
Cir. 2003)..... 1, 8, 15
White v. General Motors Corp., 908 F.2d 669 (10th Cir.
1990)...................... 15
suggestion for rehearing en BANC
Pursuant to Fed. R. App. P. 35 and 40, and 10th Cir.
Rules 35.1(A) and 40.1(A), the EEOC seeks panel rehearing or rehearing en
banc. This case warrants rehearing to secure consistency with Supreme
Court precedent and uniformity of this Court’s decisions. The panel decision
in the merits appeal (No. 11-2096), which was reached without affording the
EEOC the opportunity to present oral argument, applied an incorrect prima facie
case analysis and overlooked or misconstrued key evidence. The panel also improperly
resolved a genuine question of material fact at the core of the case: whether
Rhonda Wagoner-Alison’s disability caused her discharge or, as TriCore asserts,
her performance did. The panel’s merits decision conflicts with Supreme Court
case law—e.g., Reeves v. Sanderson Plumbing Prods. Co., 530 U.S.
133 (2000); Anderson v. Liberty Lobby, Inc., 477 U.S. 242
(1986)—as well as Tenth Circuit case law—e.g., Wells
v. Colorado Dep’t of Transp., 325 F.3d 1205 (10th Cir. 2003); Garrett v. Hewlett Packard Co., 305 F.3d 1210 (10th Cir. 2002); Butler v. City
of Prairie Village, Kan., 172 F.3d 736 (10th Cir. 1999).
The
panel’s decision on attorney’s fees (Appeal No.
11-2247) also contravenes Supreme Court and circuit precedent. Even if
the EEOC’s evidence on its termination claim is insufficient to survive summary
judgment, that claim had a reasonable basis in fact
and law, as did the EEOC’s reasonable accommodation claim. See Christiansburg
Garment Co. v. EEOC, 434 U.S. 412 (1978); Mitchell v. City of Moore, Okla., 218 F.3d
1190 (10th Cir. 2000); Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999). Moreover, in a case
such as this one involving two claims but where the defendant cannot delineate
its legal work between them, fees are unavailable unless both claims are frivolous,
which certainly is not the case here. See Fox
v. Vice, 131 S. Ct. 2205 (2011). The panel decision affirming the grant
of attorney’s fees to TriCore simply should not stand. Lastly, the panel erred by imposing appellate fees when
the appeal had merit. See Lewis v. Commissioner, 523 F.3d 1272
(10th Cir. 2008).
Rhonda Wagoner-Alison, who has diabetes and
osteoarthritis in both ankles, was a Clinical Lab Assistant II. Her job duties
included registering patients, phlebotomy, and processing specimens. Slip Op.
at 3. In 2006, she had surgery on her left foot and ankle. TriCore let her
return to work part-time performing only the sedentary patient-registration
portion of her job until she could resume normal duties. AA58 (Wagoner-Alison
Dep. (“W.A. Dep.”) 112-13).
The next year, Wagoner-Alison had surgery on her right
foot and ankle. AA102-04, AA216 (Wagoner-Alison Decl. (“W.A. Decl.”) ¶13). When
Wagoner-Alison sought to return to work temporarily doing sedentary tasks as
she had the year before, TriCore refused. Months later, around the time TriCore
had created a number of new “Registration Specialist” positions encompassing
just the patient registration duties of the CLA-II position, it allowed
Wagoner-Alison to return to work. Because of her training and successful
performance registering patients in the past, Wagoner-Alison was placed in one
of these positions for a 30-day trial period. AA83 (McMahon Dep. (“McM. Dep.”)
94:2-12), AA107 (Hahn Dep. 42). TriCore abruptly removed Wagoner-Alison from
the Registration Specialist position after just a few weeks and terminated her,
AA217 (W.A. Decl. ¶25), claiming she committed numerous errors posing a threat
to patient safety. AA32 (¶¶14, 15), AA84 (McM. Dep. 107).
Wagoner-Alison testified that: she never had any
problems in the past with registration errors or registration skills; and she
had never been coached or disciplined due to registration errors or been the
subject of an official complaint for such errors. AA215 & AA217 (W.A. Decl.
¶¶6, 7, 26), AA229 (W.A. Dep. 295-96). She had been promoted when she was a
CLA based in part on her proficiency in patient registration and her
performance evaluation for 2006 indicated her work was accurate. AA129 (Aguirre
Dep. 77:16-20), AA242 (§7), AA280 (Rogers Dep. 46). Wagoner-Alison’s
termination document states that she was terminated due to “LOA [leave of
absence] expired” and “[h]ealth.” AA276, AA85 (McM. Dep. 111).
Panel Decision
The panel held that the EEOC failed to
establish a prima facie case that TriCore terminated Wagoner-Alison because of
her disability because Wagoner-Alison could not perform the essential functions
of the CLA-II job—standing or walking—and no reasonable accommodation would
enable her to perform those functions. Slip Op. at 8. The panel further
stated that the EEOC also did not make the required prima facie case showing
that TriCore terminated Wagoner-Alison under circumstances giving rise to an
inference that her termination was based on her disability, as she was
terminated for poor performance. Id. at 10. As to fees, the panel held
that the accommodation claim became clearly frivolous when the EEOC served its
answers to TriCore’s request for admissions and that the termination claim
became frivolous when TriCore sent the EEOC a letter setting out purported
deficiencies in the EEOC’s case. Id. at 12-13. Finally, the panel
granted in part TriCore’s motion for appellate fees on the ground that that
appeal was frivolous because the EEOC did not argue on appeal that a prima
facie case existed. Id. at 13-14.
ARGUMENT
I. The panel applied an incorrect prima
facie case analysis and overlooked critical evidence in affirming summary
judgment.
The panel’s ruling that the Commission
failed to make out a prima facie case with respect to its termination claim
rests on a fundamental misunderstanding of the basis of the claim. The panel
ruled that the second prong of the prima facie case was not met because “[t]he EEOC concedes Wagoner-Alison cannot perform the
required standing or walking--both essential functions of a CLA II.” Slip Op. at 8. To drive this point home, the panel
went on to say, “Moreover, [the
Commission] does not challenge the district court’s conclusion that it failed
to present a prima facie case of failure to accommodate.” Id. Thus,
the panel ruled, “As a matter of law Wagoner-Alison is not a qualified
individual with a disability under the ADA because she cannot perform the
essential functions of the CLA II job.” Id. at 9-10. But the fundamental
problem with this analysis is that the Registration Specialist position, not
the CLA-II position, was the job at issue. And by focusing on the
accommodation claim, which the Commission did not appeal, the panel overlooked
or misconstrued key evidence that puts the question whether TriCore terminated
Wagoner-Alison because of disability in genuine dispute.
The second prong of the prima facie case
required a showing that Wagoner-Alison was
qualified to perform the essential functions of the CLA-II job or another job
she desired with or without reasonable accommodation. Slip Op. at -8. The
EEOC’s claim here was that TriCore discriminatorily removed Alison-Wagner from
the job she was performing at the time – the Registration Specialist job. This
is the job she desired. A110 (Hahn Dep. 79:7-9). Had the panel focused its analysis on this job, as
opposed to the CLA II position, it could not have determined that she was not
qualified for the position as a matter of law.
At a minimum, the record evidence
demonstrates a genuine dispute on whether Wagoner-Alison was qualified for the
Registration Specialist job. The patient
registration duties were sedentary and could be performed by Wagoner-Alison
irrespective of the restrictions on her ability to walk or stand. She had
performed these very duties for years as part of her CLA-II responsibilities and
even TriCore believed she could do the job given her experience as a CLA and
her previous training on the registration system. AA83 (McM. Dep. 94:2-12),
AA107 (Hahn Dep. 42).Thus, the
evidence easily satisfies the “qualified” prong of the prima facie case.
Rather than analyzing the Registration Specialist job
as a separate position, the panel erroneously viewed it only as an
accommodation in the CLA-II position. The panel stated, “Although registering patients was a part of the CLA II
duties, it was only a part of the required duties; the ADA does not require
TriCore to permit an employee to perform only the sedentary functions of the
CLA II job.” Slip Op. at 9. However,
the Registration Specialist position became a distinct position at TriCore and the
EEOC asserts it was from this job that Wagner-Alison was discriminatorily
removed.
Accordingly, the panel also erred when it
stated, “In essence, [TriCore] created a new job for [Wagoner-Alison],” which
is not required by the ADA. Slip Op. at 9. Far from creating a new job for Wagoner-Alison, TriCore
created a number of new Registration Specialist positions and put Wagoner-Alison
in one of them. AA83 (McM. Dep. 94:2-12). While
this was initially for a 30-day trial period, TriCore’s human resources official
testified that the trial period would have been extended automatically. AA111
(Hahn Dep. 85:7-16). Thus, in the light most favorable to the EEOC, Wagoner-Alison
likely would have been made permanent and remained in the position indefinitely
(at least until all such positions were phased out about a year and a half
later). AA83 (McM. Dep. 95-96). Whether TriCore was required to put
Wagoner-Alison in the Registration Specialist position as an accommodation is
beside the point. Once it placed her in the job, TriCore was not free to
remove her from it because she is disabled. The panel focused on the wrong job
in affirming summary judgment for lack of a prima facie case.
The panel also overlooked or misconstrued key evidence
tending to establish the third prong—i.e., that Wagoner-Alison was terminated
under circumstances giving rise to an inference the termination was due to her
disability. See Morgan v. Hilti, Inc., 108 F.3d 1319, 1323-24
(10th Cir. 1997). The EEOC’s evidence here served double duty, as it
was relevant to both prima facie case and pretext. See Adamson v. Multi
Community Diversified Servs., Inc., 514 F.3d 1136, 1151 (10th Cir. 2008); Wells, 325 F.3d at 1218, 1220.
Both the panel and the district court
treated TriCore’s claim that it terminated Wagoner-Alison for registration
errors as undisputed truth. This was plain error as there is evidence disputing
this assertion. Specifically, Wagoner-Alison was trained on patient registration,
had previously received a promotion based in part on her proficiency in patient
registration, and her performance evaluation for 2006 reflected accuracy in
performance of registration duties. AA129 (Aguirre Dep. 77:16-20), AA242 (§7), AA280
(Rogers Dep. 46). Wagoner-Alison previously had never been coached or
disciplined or received an official complaint (a “TR2”) for registration errors.
AA215 (W.A. Decl. ¶¶6, 7). TriCore's
August 2007 error report does not reflect any errors by Wagoner-Alison and
although TriCore claims this is because she was not a Registration Specialist
(AA301 ¶49), it is undisputed that during this time she was performing the job
of a Registration Specialist. AA83 (McM. Dep. 94:2-12).
The panel also overlooked the suspicious timing of the
precipitous and sudden decline in TriCore’s assessment of her performance.
This Court has recognized that “inconsistencies and contradictions … between …
evaluations … raise disputed issues of fact,” Garrett, 305 F.3d at 1219, and that “temporal proximity of [an employee’s]
request for an accommodation to the decline in his work evaluations and his
supervisors’ complaints about his work performance contributes to an inference”
of a disability-based termination, Butler, 172 F.3d at 749. A jury
could certainly find it implausible that Wagoner-Alison suddenly committed so
many errors impacting patient safety as to render her no longer qualified to
register patients and conclude instead that disability bias was afoot. This is
particularly so given the somewhat vague and subjective standard for corrective
action, AA283 (Rogers Dep. 126: “It depends ….”), which this Court has held warrants
skepticism. Garrett, 305 F.3d at 1218; Butler, 172 F.3d at 750.
The panel also rejected Wagoner-Alison’s
testimonial evidence as “unconvincing,” criticizing it as
“self-serving.” Slip Op. at 10. But a court is not to weigh the evidence or
make credibility determinations on summary judgment. Anderson, 477 U.S. at 249, 255. And as this Court stated in Kirk v.
City of Tulsa, Okla., testimony and averments are “legally competent to
oppose summary judgment, notwithstanding their inherently self-serving nature,
provided they are based on personal knowledge and set forth facts that would be
admissible in evidence.” 72 F. App’x.
747, 751, 2003 WL 21662097, at *3 (10th Cir. 2003) (citation
omitted).
Lastly, the panel overlooked a
key piece of strong circumstantial, if not direct, evidence suggesting TriCore
terminated Wagoner-Alison because of her disability. TriCore wrote on Wagoner-Alison’s
termination paper that she was being terminated due to —“LOA [leave of absence]
expired” and“[h]ealth.” AA276. The termination document makes no mention of performance
problems or failure to look for other positions. Id. Viewed in the
proper light, the company’s own admission of a disability-related reason for
Wagoner-Alison’s termination, plus all the other evidence undercutting
TriCore’s purported nondiscriminatory reason, requires the termination claim to
be decided by a jury. See Reeves, 530 U.S. at 150, 151; Anderson, 477 U.S. at 249, 255.
II. The panel contravened Supreme Court and
this Court’s precedent in affirming the award of attorney’s fees.
Again, following the district
court’s lead, the panel’s erroneous prima facie case analysis of the
termination claim and failure to consider critical record evidence resulted in
a flawed analysis of the fee issue. Of course, if this Court agrees with the
EEOC as to the merits of the termination claim, TriCore would no longer be a
prevailing party and the fee award would necessarily be vacated. But even if
this Court believes summary judgment as to the termination claim was proper,
Supreme Court precedent dictates that fees are not warranted in this case. Moreover,
because TriCore admits it cannot delineate its legal work amongst the multiple
claims brought—AAIII-564-65 ¶8—Supreme Court
precedent mandates that fees are unavailable unless all the claims are
found to be frivolous. See Fox, 131 S. Ct. at 2215. Here neither claim was, and certainly not both.
The Supreme Court held in Christiansburg
Garment Co. v. EEOC, that a prevailing Title VII defendant is not entitled
to an award of attorney’s fees unless the court finds that the plaintiff’s case
was “frivolous, unreasonable, or groundless, or that the plaintiff continued
to litigate after it clearly became so.” 434 U.S. at 422 (emphasis
added). The same standard applies to the ADA. Cf. Roe v. Cheyenne Mountain
Conference Resort, Inc., 124 F.3d 1221, 1232 (10th Cir. 1994). Rarely will this difficult standard be met. Mitchell,
218 F.3d at 1203. For the reasons discussed in part I above, this
simply is not a case where the EEOC “utterly fail[ed] to produce any
evidence in support of material issues necessary to withstand summary judgment”
or based its claims on “mere speculation and conjecture.” Twilley v.
Integris Baptist Med. Ctr., Inc., 16 F. App’x. 923, 926, 2001 WL 901102 at
*2 (10th Cir. 2001) (emphasis in original).
The panel agreed with the
district court that the termination claim became frivolous when TriCore sent
the EEOC a letter stating that Wagoner-Alison could not perform her CLA-II job,
no reasonable accommodation would permit her to do the phlebotomy function, and
she made too many errors in the patient registration job. Slip Op. at 12-13; AAIII-451-53;
AAIII-558-59. But, as demonstrated in part I above, the record contained
substantial evidence disputing TriCore’s contention that Wagoner-Alison
performed poorly. There even was evidence demonstrating TriCore admitted her
termination was due to her disability. And at the time of her termination, the
relevant job was the Registration Specialist position, so whether she could be
accommodated in the CLA-II job simply was not the issue.
The panel affirmed the district court’s
ruling that the EEOC’s accommodation claim became clearly frivolous on April 8,
2010, when the EEOC admitted that standing and walking were essential functions
of the CLA job. Slip Op. at 12; AA95-96; AAIII558. Notwithstanding these mistaken
admissions, the accommodation claim was not clearly “frivolous, unreasonable or
groundless.” The point here is not that TriCore was obligated to waive
essential functions. Nor is the point even that TriCore should be “deemed to
have conceded the reasonableness” of waiving essential functions. Slip Op. at 9-10
n.7. The EEOC readily concedes that the law requires neither. But the
accommodation claim was not clearly frivolous, because even if Wagoner-Alison
could not be accommodated in the CLA-II job, had TriCore engaged Wagoner-Alison
in an interactive process when she asked for sedentary duties, it possibly
could have reassigned her to a job she could have done within her limitations.
See Smith, 180 F.3d at 1171-72 (holding notice to employer of disability and desire to remain with the company
triggers a mandatory interactive process and duty to consider reassignment). See
also EEOC v. United Airlines, Inc., __ F.3d __, 2012 WL 3871503, at *1, *4
(7th Cir. Sept. 7, 2012) (ADA obligation to
accommodate may require noncompetitive reassignment).
III. The panel decision allowing fees on this
appeal has no basis in law or fact.
Without
analysis, the panel held that fees should be awarded for this appeal on the
ground that “the EEOC [did] not even argue that the district court erred in
determining the EEOC failed to establish a prima facie case.” Slip Op. at 13.
Yet earlier in the opinion the panel stated it would construe the EEOC’s
argument as going to the prima facie case “at most.” Slip Op. at 6. This
clearly does not follow. Further, the EEOC had no occasion to argue on appeal
that the district court erred in finding no prima facie case as to its claim of
failure to accommodate because the EEOC did not appeal that claim on the
merits. Moreover, the assertion that the EEOC did not argue error as to the
termination claim is mere semantics. The district court, after laying out its
pretext analysis on the termination claim (AA345-46), concluded its opinion by
stating summarily that the EEOC failed to establish a prima facie case because
the EEOC “has shown no discrimination due to her disability. To the contrary,
the undisputed material facts show that TriCore removed [Wagoner-Alison] from
her temporary sedentary assignment as a result of the numerous errors she was
committing in that capacity.” AA346. There can be no doubt that the EEOC’s
appeal challenged the court’s determination that the EEOC failed to dispute
TriCore’s asserted reason and that it presented no evidence of disability
discrimination. The hyper-semantic dichotomy between the prima facie case and
pretext is false in this case. See Wells, 325 F.3d at 1218, 1220. The EEOC’s appeal was not frivolous,
as it did not present “irrelevant and illogical arguments based on factual
misrepresentations and false premises,” nor was “the result … obvious, or [the
EEOC’s arguments] wholly without merit.” Lewis, 523 F.3d at 1277-78 (citations omitted). See also White
v. General Motors Corp., 908 F.2d 669, 675 (10th Cir. 1990) (“draconian” application of Rule 38 results in “too
great a chill of advocacy”).
CONCLUSION
The Commission respectfully requests panel or en
banc rehearing.
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P. DAVID LOPEZ
General Counsel
CAROLYN L. WHEELER
Acting
Associate General Counsel
LORRAINE C. DAVIS
Assistant General Counsel
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___________________________
CORBETT L. ANDERSON, Attorney
Equal Employment
Opportunity Comm’n
131 M Street, N.E.
Washington, D.C. 20507
(202) 663-4579; Fax: (202) 663-7090
corbett.anderson@eeoc.gov
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