PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT 

 

CATHERINE ROBERT,

 Plaintiff  Appellant,

v.

BOARD OF COUNTY 

COMMISSIONERS OF BROWN 

COUNTY, KANSAS; WARREN L. 

PLOEGER, in his individual and official 

capacity; STEVE ROBERTS, in his 

individual and official capacity; GLEN 

LEITCH, in his individual and official 

capacity; VENICE SLOAN, in her 

individual and official capacities,

Defendants  Appellees.

No. 11-3092

 

Appeal from the United States District Court 

 for the District of Kansas 

(D.C. No. 2:08-CV-02150-EFM)

 

Penny R. Moylan (Mark L. Bennett, Jr., with her on the briefs), Bennett & Hendrix, LLP, 

Topeka, Kansas, for the Plaintiff-Appellant. 

Tara S. Eberline (James D. Oliver and Wendell F. Cowan, with her on the brief), 

Foulston Siefkin, Overland Park, Kansas, for the Defendants-Appellees. 

 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 29, 2012

Elisabeth A. Shumaker 

Clerk of Court
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Before BRISCOE, Chief Judge, EBEL and LUCERO, Circuit Judges. 

LUCERO, Circuit Judge. 

 

 Catherine Robert had worked as supervisor of released adult offenders for ten 

years when she developed sacroiliac joint dysfunction. After a lengthy leave of absence, 

including the period authorized by the Family and Medical Leave Act (“FMLA”), Robert 

remained unable to perform all of her required duties, and she was terminated. For the 

reasons stated hereafter, we conclude that Robert’s discharge did not constitute 

discrimination in violation of the Americans with Disabilities Act (“ADA”), retaliation in 

violation of the FMLA, breach of contract, or abridgment of procedural due process. 

I 

Catherine Robert began supervising felony offenders in Kansas’ Twenty-Second 

Judicial District in 1995, and she became a Brown County employee when it assumed 

control of the program in 2003. Her role as an Adult Intensive Supervision Officer 

required her to oversee adult offenders in an effort to minimize recidivism, facilitate 

reentry into society, and protect the community. Her job description lists eighteen 

“essential functions,” including performing drug screenings, coordinating with service 

providers, ensuring compliance with court orders, and testifying in court. In sections on 

working conditions and location, the document notes that the job requires “considerable 

fieldwork . . . throughout the 22nd Judicial District,” “visits in less than desirable 
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environments,” and “potentially dangerous situations in field/office contacts.” 

Robert began to experience severe pain in her back and hips in January 2004. Her 

condition was eventually diagnosed as sacroiliac joint dysfunction. She scheduled 

surgery for her condition in April. In the meantime, walking became impossible, and she 

used crutches and later a wheelchair to get around. She continued to work from the 

office, though some adjustments were necessary; for example, she participated in court 

hearings by telephone. 

In the weeks immediately preceding her surgery, and again during her recovery, 

Robert worked from home by auditing case files for closed cases. During this time, she 

was unable to visit offenders at their homes or in jail, and she was similarly unable to 

supervise drug and alcohol screenings. As a result, other employees took up those tasks 

for her. According to Venice Sloan, Robert’s supervisor, the increased workload for 

other employees created tension and ultimately contributed to one employee’s 

resignation. Robert returned to the office in July or August 2004 and was eventually able 

to resume all of her work activities.1

Her good health, however, was fleeting. In November 2005, she fell down the 

stairs in the Brown County courthouse. Shortly thereafter, symptoms of her joint 

dysfunction returned, leading her to schedule another surgery for April 2006. As before, 

 1

 Because Robert was a new Brown County employee, the days she was wholly 

unable to work outnumbered her reserved sick days. However, Sloan allowed her to use 

future sick days with the understanding that she would pay them back after her recovery. 
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Robert continued to come in to the office prior to the operation, but she was unable to 

perform site visits, testify in court, or supervise screenings. Once again, her co-workers 

had to assume those duties. 

 Because Robert was injured at work, Brown County’s workers’ compensation 

insurance covered her medical care. Linda Naylor was assigned to manage Robert’s 

claim and act as a liaison between Robert’s care providers and Brown County. Naylor 

was not an employee of the county; rather, she worked for a case management provider 

that was contracted by a third-party insurance administrator used by the county’s 

insurance provider. 

 Several documents were prepared to account for Robert’s absence during her 

surgery and recovery. Robert submitted a “Leave of Absence” form, which Sloan signed, 

requesting leave beginning the day before her surgery. The date of return was left blank. 

Sloan provided Robert with a document stating that Robert had the right to up to twelve 

weeks of job-protected leave under the FMLA, and that Robert’s requested leave would 

be counted against her leave entitlement. In addition, Robert was required to furnish a 

“fitness-for-duty” certificate prior to reinstatement. Sloan and Robert also both signed a 

document entitled “Procedures during Cathy’s Surgery and Recovery.” The document 

stated that Robert’s surgery and recovery could last eight to ten weeks, but that she could 

work some hours from home once the county received a written doctor’s authorization 

clearing her for light duty. 

 Surgery went as planned. Robert’s FMLA protected leave expired on July 5, 
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2006. On July 17, Robert and Naylor attended a follow-up appointment. After 

examining Robert, the surgeon predicted that she might be able to walk with a cane in 

two to three weeks, and unassisted two weeks after that. He told Robert that she could 

work on a computer from home, and prepared a “Work Status Report” to this effect. 

However, the surgeon did not give a copy of this report to Robert. Naylor claims to have 

not received a copy either, and there is no evidence in the record that either Sloan or any 

Brown County employee received a written release before Robert’s termination. 

It is unclear what information Sloan received regarding Robert’s prognosis. 

Naylor’s notes indicate that she told Sloan that Robert would be able to walk with a cane 

in three to four weeks. According to Sloan, Naylor told her Robert would not be able to 

come into the office for a couple months. Sloan’s journal notes are somewhat oblique but 

suggest that she understood Naylor to say that Robert could, in the best of scenarios, 

return to work with a cane in a month. 

At this point, Robert had exhausted her FMLA, sick, and vacation leave, and 

Sloan recommended that the Board terminate her employment. On July 31, the Board 

voted to terminate Robert. Sloan, who considered Robert a friend, insisted on delivering 

her termination letter in person. Unbeknownst to Sloan, Robert’s husband recorded the 

emotional conversation. Sloan told Robert that the county commissioners had decided to 

terminate her because she was unable to return to work at full capacity after her leave 

ended. Robert was shocked and upset, but acknowledged she was “an at-will employee, 

okay, and it’s up.” In fact, she recognized her at-will employment status several times 
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during the conversation. 

Robert then sued the county, the commissioners, and Sloan. She claimed that her 

termination constituted unlawful retaliation for her use of FMLA leave, discrimination 

under the ADA, breach of contract, and violation of her procedural due process rights 

under the Fourteenth Amendment, along with other claims not relevant to this appeal. 

The district court granted summary judgment in favor of the defendants on all claims. 

She appeals to us. 

II 

We review a summary judgment grant de novo, “viewing the evidence in the light 

most favorable to the nonmoving party.” Howard v. Waide, 534 F.3d 1227, 1235 (10th 

Cir. 2008). Summary judgment is warranted only if there is no genuine dispute of 

material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. 

P. 56(c). 

A 

To state a prima facie case for discrimination under the ADA, Robert must 

establish that: (1) she is disabled; (2) she was qualified, with or without reasonable 

accommodation, to perform the essential function of her job; and (3) her employer 

discriminated against her because of her disability. Taylor v. Pepsi-Cola, 196 F.3d 1106, 

1109 (10th Cir. 1999). The district court resolved this case on the second prong. 

Because we agree that Robert was not qualified, we do not address the other 

requirements. 
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To determine whether Robert is a “qualified individual,” we consider two criteria. 

Davidson v. Am. Online, Inc., 337 F.3d 1179, 1190 (10th Cir. 2003). First, we must 

assess whether her impairment prevented her from performing the essential functions of 

her job. Id. If so, we must then determine whether she might have nevertheless been 

able to perform those functions if the county provided her a reasonable accommodation. 

Id. 

 Robert concedes that she could not work outside her home when Brown County 

terminated her. But supervising offenders in-person was clearly an essential function of 

her position. So too was conducting visits to their homes and workplaces. On this score, 

we must defer to Sloan’s testimony that supervising offenders in person was a 

“necessary” component of her position. See Davidson, 337 F.3d at 1191 (“[C]ourts must 

give consideration to the employer’s judgment as to what functions of a job are essential” 

though “such evidence is not conclusive”); 42 U.S.C. § 12111(8). Our conclusion is 

bolstered by the fact that Robert’s absence caused strain in her small office. See 29 

C.F.R. § 1630.2(n)(2)(ii) (“limited number of employees available among whom the 

performance of that job function can be distributed” is relevant to essential-function 

inquiry). Furthermore, Sloan testified that Robert dedicated fifty percent of her time to 

these site visits when she was able; even according to Robert, the portion was twenty-five 

percent. The offender supervision officer job description further confirms the importance 

of fieldwork to her position; the fact that the location of her duties is specified in the 

“Working Conditions” and “Job Locations” sections, rather than the “Essential 
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Functions” section, does not render her fieldwork nonessential. Cf. Mason v. Avaya 

Commc’ns, Inc., 357 F.3d 1114, 1121-22 (10th Cir. 2004) (“attendance, supervision, and 

teamwork” were essential functions of job even though they were not listed on the job 

description). 

Nor do we see the county’s willingness to excuse Robert’s inability to perform site 

visits as evidence that those duties were nonessential. To be sure, we have often said that 

the essential-function inquiry turns on “whether an employer actually requires all 

employees in the particular position to satisfy the alleged job-related requirement.” Tate 

v. Farmland Indus., Inc., 268 F.3d 989, 993 (10th Cir. 2001); see also Davidson, 337 F.3d 

at 1191 (quoting Tate). But a plaintiff cannot use her employer’s tolerance of her 

impairment-based, ostensibly temporary nonperformance of essential duties as evidence 

that those duties are nonessential. To give weight to such a fact would perversely punish 

employers for going beyond the minimum standards of the ADA by providing additional 

accommodation to their employees. See Basith v. Cook Cnty., 241 F.3d 919, 930 (7th 

Cir. 2001) (“We do not believe it wise to consider the special assignment as proof that 

delivery was not an essential function because it would punish Cook County for going 

beyond the ADA’s requirements.”). Thus, Brown County’s willingness to retain Robert 

in 2004 despite her inability to perform site visits for several months does not make those 

visits nonessential. For the same reason, we assign no particular import to Sloan’s 

statement that she would not have recommended the county terminate Robert in July had 

Sloan received a doctor’s authorization stating that Robert could work from home. 
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Although site visits and other out-of-office work were an essential function of her 

position, Robert would be nonetheless qualified if she could have performed those duties 

with a reasonable accommodation. See Davidson, 337 F.3d at 1190. In light of Robert’s 

complete inability to perform site visits at the time of her firing, the only potential 

accommodation would be a temporary reprieve from this essential function.2

 Our 

precedents recognize that a brief leave of absence for medical treatment or recovery can 

be a reasonable accommodation. See Cisneros v. Wilson, 226 F.3d 1113, 1129 (10th Cir. 

2000), overruled on other grounds by Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 

(2001); Taylor, 196 F.3d at 1110; Rascon, 143 F.3d at 1334. 

There are two limits on the bounds of reasonableness for a leave of absence. The 

first limit is clear: The employee must provide the employer an estimated date when she 

can resume her essential duties. See, e.g., Cisneros, 226 F.3d at 1130; Rascon, 143 F.3d 

at 1334. Without an expected end date, an employer is unable to determine whether the 

 2

 Robert argues that working from home was a reasonable accommodation, but 

this argument ignores the obvious fact that she could not perform site visits from her 

house. When an individual can execute the essential functions of her job from home, 

working remotely may be a reasonable accommodation. When a disability renders an 

employee completely unable to perform an essential function, however, the only potential 

accommodation is temporary relief from that duty. See Rascon v. US West Commc’ns, 

Inc., 143 F.3d 1324, 1333-35 (10th Cir. 1998) (holding that a four-month leave of 

absence could be a reasonable accommodation), overruled on other grounds by New 

Hampshire v. Maine, 535 U.S. 742 (2001). Robert asserts that, because she could work 

from home at the time of her termination, she only required excusal from her in-person 

duties, and not an all-encompassing leave of absence. But we see no reason why the 

principles established in our leave-of-absence cases should not control in cases where a 

disability temporarily prevents an employee from performing some essential functions of 

her job. 
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temporary exemption is a reasonable one. 

The second is durational. A leave request must assure an employer that an 

employee can perform the essential functions of her position in the “near future.” 

Cisneros, 226 F.3d at 1129 (quotation omitted). Although this court has not specified 

how near that future must be, the Eighth Circuit ruled in an analogous case that a sixmonth leave request was too long to be a reasonable accommodation. Epps v. City of 

Pine Lawn, 353 F.3d 588, 593 (8th Cir. 2003).

 The district court held that Robert’s needed accommodation exceeded both 

limitations on reasonability: It found that Robert failed to provide a definite estimate of 

her ability to resume site visits and that any further exemption following six months of 

temporary accommodation would be unreasonable as a matter of law. Because we take 

the district court’s view of the first matter, we do not address the potential that the 

accommodation exceeded reasonable durational bounds. 

 There is no evidence in the record that Robert’s employer had any estimation of 

the date Robert would resume the fieldwork essential to her position. Although the 

doctor’s prognosis varied before and after the surgery, Naylor told Sloan on July 19, 

2006—just after Robert’s follow-up appointment and shortly before she was 

terminated—that Robert could be walking with a cane in three to four weeks.3

 However, 

 3

 This is the account most favorable to Robert; according to Sloan, Naylor told her 

Robert would not be able to walk even with crutches for “a couple of months.” 
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Robert questioned whether this time frame was “too fast,” and testified that she assumed 

her job would be protected “regardless of the length” of her recovery.4

 In any event, the 

doctor’s prediction that Robert could walk with a cane in a month’s time does not suffice 

to assure the county that she would then be able to perform site visits and other 

fieldwork. As Robert herself recognized, she needed near-full mobility to ensure her 

safety as she visited felony offenders in their homes, workplaces, and treatment facilities, 

an activity that could be dangerous.5

 Accordingly, the record shows that, at the time of 

her termination, the county did not have a reasonable estimate of when she would be able 

to resume all essential functions of her employment. As such, the only potential 

accommodation that would allow Robert to perform the essential functions of her 

position was an indefinite reprieve from those functions—an accommodation that is 

unreasonable as a matter of law. Rascon, 143 F.3d at 1334. For that reason, she was not 

a qualified individual under the ADA and her claim of discrimination fails. 

B 

 Robert asserts that her termination was also unlawful retaliation for her use of 

 4

 In fact, according her doctor’s records, Robert remained totally disabled until, at 

the earliest, nearly four months after her termination. 

5

 Robert acknowledged this fact at a post-termination meeting with Naylor in 

September 18, 2006. Naylor’s notes reveal that even though Robert was able to walk 

with the help of a crutch, she did not think she could perform site visits unassisted 

because of their sometimes hazardous nature. For her part, Robert claims she never said 

she was unable to perform her former job at that date, but that is irrelevant: The point is 

that Robert acknowledged that site visits required heightened mobility beyond assisted 

ambulation. 
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protected medical leave.6

 This court analyzes such claims under the burden-shifting 

framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 494, 802-04 

(1973). See Morgan v. Hilti, 108 F.3d 1319, 1323 (10th Cir. 1997). To establish a prima 

facie case of FMLA retaliation, an employee must prove that she: (1) availed herself of a 

protected right under the FMLA; (2) was adversely affected by an employment decision; 

and (3) that there was a causal connection between the two actions. Id. at 1325. The first 

two elements are undisputed. We further assume without deciding that the brief interval 

between the expiration of Robert’s leave and her termination is sufficient to establish the 

causal connection. Cf. Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 

1999) (noting that Tenth Circuit precedent holds that a one and one-half month period is 

sufficient proof of causal connection, but that a three month interval, standing alone, is 

not). Under the McDonnell Douglas framework, the burden then shifts to the county to 

offer a legitimate reason for her termination, and if it does, then back to Robert to present 

 6

 Robert did not raise a claim for interference under the FMLA. An FMLA 

interference claim is based on an employer’s alleged denial of an employee’s FMLA 

rights, including a wrongful refusal to restore an employee after the expiration of the 

protected leave. In contrast, a retaliation claim is premised on an adverse employment 

action that was allegedly motivated by the employee’s choice to take the protected leave. 

See Strickland v. Water Works & Sewer Bd. of Birmingham, 239 F.3d 1199, 1206-07 

(11th Cir. 2001); see also Valdez v. McGill, 462 F. App’x 814 (10th Cir. 2012) 

(unpublished). In the typical retaliation claim, the “employee successfully took FMLA 

leave, was restored to her prior employment status, and was adversely affected by an 

employment action based on incidents post-dating her return to work.” Campbell v. 

Gambro Healthcare, Inc., 478 F.3d 1282, 1287-88 (10th Cir. 2007).
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evidence to suggest the stated reason was pretextual. 

We conclude that Robert has not undermined the county’s legitimate reason for 

her termination: that she failed to return to work with the required release after she 

exhausted her FMLA leave. Robert insists that Brown County should have known the 

doctor released her to work from home as of July 17. However, no individual—neither 

Robert, her husband, Naylor, nor the doctor—testified that he or she delivered the release 

to Sloan. And Sloan maintains she did not receive it. Even if Sloan had received the 

release, Brown County was not required to allow Robert to work from home after her 

FMLA leave expired. See Part II.A., supra (holding that indefinite exemption from 

essential functions was not a reasonable accommodation). Thus, we conclude that Robert 

could not return to her job, with or without reasonable accommodations, when she was 

terminated on July 31, and certainly not when her FMLA leave ended on July 5. 

 Robert argues that the allegedly differing justifications Sloan offered in 

conversation and in writing in her termination letter show evidence of pretext. But 

despite different phrasing, the underlying message was consistent: Robert was let go 

because she was unable to perform her job functions. We also find unpersuasive 

Robert’s arguments relating to a county policy distinct from the FMLA that allowed 

employees to request unpaid leave. The fact that Robert might have requested additional 

leave—she did not formally ask for leave under this policy, and the county was not 

required to grant it—simply does not demonstrate that the county’s stated reason for 

termination was pretextual. 
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C 

 The district court was also correct in concluding that Robert could not, as a matter 

of law, prevail on her state-law contract claim. Robert asserts that the county breached 

both express and implied employment contracts by terminating her after her failure to 

return to work. 

 In Kansas, public employment is presumptively at-will. Farthing v. City of 

Shawnee, 39 F.3d 1131, 1136 (10th Cir. 1994). To override this presumption, a written 

contract must expressly fix the duration of employment or otherwise limit the employer’s 

ability to discharge. Johnson v. Nat’l Beef Packing Co., 551 P.2d 779, 782 (Kan. 1976); 

Cussimanio v. Kan. City S. R.R., 617 P.2d 107, 111 (Kan. App. 1980). As she did 

below, Robert argues that two documents—the document describing the procedures to be 

followed during her convalescence and the form approving her leave of absence—created 

express employment contracts. But neither of these documents can be construed as 

creating a limited term of employment or overriding the county’s stated at-will policy. 

Thus, those documents are incapable of supporting an action for breach of contract, 

regardless of whether the prescribed procedures were followed. 

 Absent an express agreement, Kansas law enforces an implied employment 

contract only when the circumstances demonstrate a mutual intent to contract. 

Anglemeyer v. Hamilton Cnty. Hosp., 58 F.3d 533, 537 (10th Cir. 1995). Robert argues 

that she and Sloan agreed that she would be allowed to work from home and reinstated 

whenever she recovered, thus creating an implied contract. As the district court correctly 
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concluded, however, the record cannot sustain this argument. After Sloan delivered the 

news of her termination, Robert repeatedly acknowledged that she was an at-will 

employee and that the county had the power to terminate her for any reason. Moreover, 

Robert admitted that neither Sloan nor any other employee told her that her job would be 

held open indefinitely. Thus, the district court was correct to grant Brown County 

summary judgment on the contract claim. 

D 

 Robert’s § 1983 procedural due process claim fails for the same reason as her 

contract claim: her employment was at-will. Kansas courts have been quite clear that atwill employees lack a property interest in their position. See Farthing, 38 F.3d at 1136. 

Absent a property interest, there can be no violation of Due Process. 

III 

AFFIRMED.