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. Be nnett, Jr., with her on the briefs), Bennett & Hendrix, LLP, Topeka, Kansas, for the Plaintiff-Appellant. Tara S. Eberline (James D. Oliver and We ndell F. Cowan, with her on the brief), Foulston Siefkin, Overla nd Park, Kansas, for the Defendants-Appellees. FILED United States Court of Appeals Tenth Circuit 

### August 29, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - Before BRISCOE , Chief Judge, EBEL and LUCERO , Circuit Judges.

LUCERO , Circuit Judge.

Catherine Robert had worked as supervis or of released adult offenders for ten years when she developed sacroiliac joint dysf unction. After a lengthy leave of absence, including the period authoriz ed by the Family and Medical Leave Act (“FMLA”), Robert remained unable to perform all of her require d duties, and she was terminated. For the reasons stated hereafter, we conclude th at Robert’s discharge did not constitute discrimination in viol ation of the Americans with Disa bilities Act (“ADA”), retaliation in violation of the FMLA, breach of contract, or abridgment of proced ural due process.
I Catherine Robert began s upervising felony offenders in Kansas’ Tw enty-Second Judicial District in 1995, and she became a Brown Coun ty employee when it assumed control of the program in 2003. Her role as an Adult Intensiv e Supervision Officer required her to oversee adult offenders in an effort to minimize recidivism, facilitate reentry into society, and protect the comm unity. Her job description lists eighteen “essential functions,” includ ing performing drug screenings, coordinating with service providers, ensuring compliance with court orders , and testifying in cour t. In sections on working conditions and location, the document notes that th e job requires “considerable fieldwork . . . throughout the 22nd Judicial Di strict,” “visits in less than desirable- 3 - 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 sacr oiliac joint dysfunction. She scheduled surgery for her condition in Apr il. In the meantime, walki ng became impossible, and she used crutches and later a wheelchair to ge t around. She continued to work from the office, though some adjustments were necessary ; for example, she pa rticipated in court hearings by telephone. In the weeks immediately preceding her surgery, and again during her recovery, Robert worked from home by au diting case files for closed cas es. 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 in creased workload for other employees created te nsion and ultimately contri buted to one employee’s resignation. Robert returned to the offi ce in July or Au gust 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 co urthouse. Shortly thereafter, symptoms of her joint dysfunction returned, leading her to schedule another surgery for Apr il 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 sh e would pay them back after her recovery.- 4 - Robert continued to come in to the office pr ior to the operation, but she was unable to perform site visits, testify in court, or supe rvise 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 betw een Robert’s care providers and Brown County. Naylor was not an employee of the co unty; rather, she wo rked for a case management provider that was contracted by a third-party insu rance administrator us ed by the county’s insurance provider. Several documents were prepared to account for Robert’s absence during her surgery and recovery. Robert submitted a “L eave of Absence” form, which Sloan signed, requesting leave beginning the day before her surg ery. The date of return was left blank. Sloan provided Robert with a do cument stating that Robert ha d 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 pr ior to reinstatement. Sloan and Robert also both signed a document entitled “Procedures du ring Cathy’s Surgery and Re covery.” The document stated that Robert’s surgery an d recovery could last eight to ten weeks, but that she could work some hours from home on ce the county rece ived a written doctor’s authorization clearing her for light duty. Surgery went as planned. Robert’s FMLA protected leave expired on July 5,- 5 - 2006. On July 17, Robert and Naylor attended a follow-up appointment. After examining Robert, the surgeon pr edicted that she might be ab le 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 Robe rt. Naylor claims to have not received a copy either, and there is no eviden ce in the record that either Sloan or any Brown County employee received a written re lease before Robert’s termination. It is unclear what information Sloan re ceived 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. Acco rding to Sloan, Naylor told her Robert would not be able to come into the office for a couple months. Sl oan’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 he r 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 consid ered 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 un able to return to work at full capac ity 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- 6 - during the conversation. Robert then sued the coun ty, the commissioners, and Sloan. She claimed that her termination constituted unlawful retaliation fo r her use of FMLA leave, discrimination under the ADA, breach of cont ract, and violation of her procedural due process rights under the Fourteenth Amendmen t, 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 judgme nt grant de novo, “viewing the evidence in the light most favorable to the nonmoving party.” Ho ward 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 di sabled; (2) she was qualified, with or without reasonable accommodation, to perform the essential f unction of her job; and (3) her employer discriminated against her because of her disa bility. Taylor v. Peps i-Cola, 196 F.3d 1106, 1109 (10th Cir. 1999). The district court re solved this case on the second prong. Because we agree that Robert was not qualified, we do not address the other requirements.- 7 - 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 he r from performing the essential functions of her job. Id. If so, we must then determin e 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 hom e when Brown County terminated her. But supervisin g offenders in-person was clear ly an essential function of her position. So too was conduc ting visits to their homes and workplaces. On this score, we must defer to Sloan’s testimony that supervising offende rs 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. § 1 2111(8). Our conclusion is bolstered by the fact that Robert’s absen ce 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 dist ributed” is relevant to essential-function inquiry). Furthermore, Sloan testified that Robert dedicated fifty percent of her time to these site visits when she wa s able; even according to Robe rt, the portion was twenty-five percent. The offender supervision officer jo b description further confirms the importance of fieldwork to her position; the fact that th e location of her duties is specified in the “Working Conditions” and “Job Locations” sections, rather th an the “Essential- 8 - Functions” section, does not render her fi eldwork 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 ev en 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 nonessen tial. To be sure, we have often said that the essential-function inquiry turns on “whe ther 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 cann ot use her employer’s tolerance of her impairment-based, ostensibly temporary nonpe rformance of essentia l 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 th e 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 cons ider the special assignment as proof that delivery was not an essentia l function because it would punish Cook County for going beyond the ADA’s requirements.”). Thus, Br own County’s willingness to retain Robert in 2004 despite her in ability 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 sta ting that Robert coul d work from home.- 9 - Although site visits and other out-of-office work were an essential function of her position, Robert would be none theless 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 pe rform site visits at the time of her firing, the only potential accommodation would be a temporary repr ieve from this essential function. 2 Our precedents recognize that a brie f leave of absence for medica l 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 reas onableness for a leave of absence. The first limit is clear: The employee must provi de 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 hom e was a reasonable accommodation, but this argument ignores the obvi ous fact that she could not perform site visits from her house. When an individual can execute th e essential functions of her job from home, working remotely may be a reasonable acco mmodation. When a disability renders an employee completely unable to perform an essential function, however, the only potential accommodation is temporary relie f 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 reasona ble 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, sh e only required excusa l from her in-person duties, and not an all-encomp assing leave of absence. But we see no reason why the principles established in our leave-of-absence cases should not cont rol in cases where a disability temporarily prevents an employee from performing so me essential functions of her job.- 10 - temporary exemption is a reasonable one. The second is durational. A leave reque st 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 analogou s case that a sixmonth leave request was too long to be a re asonable 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 de finite estimate of her ability to resume site visits and that an y further exemption foll owing six m onths of temporary accommodation wo uld be unreasonable as a matter of law. Because we take the district court’s view of the first ma tter, we do not address the potential that the accommodation exceeded reas onable durational bounds. There is no evidence in th e record that Robert’s empl oyer had any estimation of the date Robert would resume the fieldwork essential to her pos ition. Although the doctor’s prognosis varied before and after th e surgery, Naylor told Sloan on July 19, 2006—just after Robert’s follow-up ap pointment 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 Ro bert; according to Sloan, Naylor told her Robert would not be able to walk even w ith crutches for “a couple of months.”- 11 - 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 sh e would then be able to pe rform site visits and other fieldwork. As Robert herself recognized, she needed near-full m obility to ensure her safety as she visited felony offenders in th eir homes, workplaces, an d 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 reas onable 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 an d her claim of discrimination fails.
B Robert asserts that her termination wa s also unlawful retaliation for her use of

4 In fact, according her doctor’s records, Ro bert 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 th at even though Robert was able to walk with the help of a crutch, she did not think she could pe rform site visits unassisted because of their sometimes hazar dous 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 m obility beyond assisted ambulation.- 12 - protected medical leave. 6 This court analyzes such claims under the burden-shifting framework established in Mc Donnell 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 adve rsely affected by an employment decision; and (3) that there was a causal connection betw een 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 he r 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, th e burden then shifts to the county to offer a legitimate reason for he r termination, and if it does, th en back to Robert to present

6 Robert did not raise a claim for in terference 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 rest ore 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 empl oyee’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 clai m, the “employee suc cessfully took FMLA leave, was restored to her prior employmen t status, and was adversely affected by an employment action based on incidents post-da ting her return to wo rk.” Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287-88 (10th Cir. 2007).- 13 - evidence to suggest the stat ed reason was pretextual. We conclude that Robert has not underm ined 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 s hould 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—tes tified that he or she delivered the release to Sloan. And Sloan maintains she did not re ceive 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., supr a (holding that indefinite exemption from essential functions was not a reasonable accomm odation). Thus, we conclude that Robert could not return to her job, with or w ithout reasonable accommodations, when she was terminated on July 31, and ce rtainly not when her FMLA leave ended on July 5. Robert argues that the allegedly di ffering justifications Sloan offered in conversation and in writing in her termination letter show ev idence of pretext. But despite different phrasing, the underlying me ssage was consistent: Robert was let go because she was unable to perform her j ob 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 ha ve requested additional leave—she did not formally as k for leave under this polic y, and the county was not required to grant it—simply does not demonstr ate that the county’s stated reason for termination was pretextual.- 14 - C The district court was also correct in conc luding 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 contract s by terminating her after her failure to return to work. In Kansas, public employment is presum ptively 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 convalescen ce 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 incap able of supporting an acti on for breach of contract, regardless of whether the prescrib ed procedures were followed. Absent an express agreement, Kansas law enforces an implied employment contract only when the circumstances de monstrate a mutual intent to contract. Anglemeyer v. Hamilton Cnty. Hosp., 58 F.3d 533, 537 (10t h 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 implie d contract. As the district court correctly- 15 - concluded, however, the record cannot sustai n this argument. After Sloan delivered the news of her termination, Robert repeated ly acknowledged that she was an at-will employee and that the county had the power to terminate he r for any reason. Moreover, Robert admitted that neither Sl oan nor any other em ployee 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 proce ss 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. Se e Farthing, 38 F.3d at 1136. Absent a property interest, there can be no violation of Due Process.
III AFFIRMED

.