F I LED

United States Court of Appeals

Tenth Circuit

September 6, 2006

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CHRISTIE MCWILLIAMS, 

Plaintiff-Appellant,

v. No. 05-1081

JEFFERSON COUNTY,

Defendant-Appellee.

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. 03-B-2201 (CBS))

Lee T. Judd of Andrew T. Brake, P.C., Englewood, Colorado, for Appellant.

Patricia W. Gilbert, Assistant County Attorney (Frank J. Hutfless, Jefferson

County Attorney, with her on the brief), Jefferson County Attorney’s Office,

Golden, Colorado, for Appellee.

Before KELLY, McKAY, and O’BRIEN, Circuit Judges.

McKAY, Circuit Judge.

Plaintiff, formerly a computer-support specialist with Jefferson County,

suffers from intermittent depressive episodes which make it difficult for her to

sleep, “deal with people,” and “cope with work situations.” Order, 3 (D. Colo.
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Jan. 13, 2005) (internal quotations omitted). She claims that she let her

supervisors know about her depression and that she asked for their help in the

form of encouragement–“just pat me on the back and tell me that it’ll be better in

a few days.” Id. at 4 (internal quotations omitted). 

Plaintiff was employed by Jefferson County from September 1995 to

October 16, 2002. During this seven-year period, she received several negative

performance evaluations concerning her interactions with others. She was

criticized for “rude and inappropriate” behavior and for not being able “to keep

her cool.” Id. at 2 (internal quotations omitted). Most recently, in 2002,

Plaintiff’s supervisor admonished her both verbally and in writing for her

disrespectful conduct and inappropriate behavior. Evidently, Plaintiff had made

personal charges on a County credit card (which she eventually repaid), had

neglected to notify her supervisors in advance of numerous absences, and had

been inconsiderate to co-workers on several occasions. 

Plaintiff received an unfavorable evaluation in 2002, although she disputes

the negative characterization of her job performance. Plaintiff “attributes her

personal shortcomings to her depression, which she considers a disability.” Id. 

She has taken medication to combat her depression since 1992 and attended

weekly counseling sessions from 1992 to 1994 (prior to her employment with

Jefferson County).

During her years with the County, Plaintiff was granted several FMLA and
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other leaves of absence. In 1998, she took a family leave of absence. In 1999,

she was granted a seven-week medical leave due to a car accident. She applied

for and was granted additional leave from the County sick leave bank in 1999. In

2000, she took a five-week leave of absence following surgery. In 2002, she took

a six-week leave following her father’s death. Plaintiff also took off work

without advance notice on three occasions in 2002. The only instance in which

the County denied Plaintiff leave followed her request for accommodation to

settle her deceased father’s estate. Plaintiff was informed that the County’s

employment policy does not grant sick leave for that purpose.

On October 16, 2002, the director of the County computer department

informed Plaintiff of his intention to terminate her employment. During this

meeting, the County maintains that Plaintiff was given two options: (1) to receive

a notice of intent to dismiss (and be terminated) or (2) to resign by signing a

release of all claims against the County and receive a two-month severance

package. Appellee Br. at 4-5. Plaintiff disputes this characterization of her

options; she claims that she was 

informed she was terminated, either with money or without, and she

had to make an immediate decision as to whether she wanted money

or not, despite her requests that she be allowed to consult her

husband, have time to consider the options and to see the paperwork

for both options.

Appellant Br. at 20.

Plaintiff brought this lawsuit alleging claims of gender discrimination
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under 42 U.S.C. § 2000e et seq., disability discrimination under 42 U.S.C. §§

12101-12213, breach of contract, promissory estoppel, and violation of the

Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. The district court

granted summary judgment to the County on all claims. Plaintiff appeals that

judgment. 

On appeal, we review de novo the propriety of a grant of summary

judgment. EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th

Cir. 2000). Summary judgment is only warranted when there exists no genuine

issue as to any material fact and the moving party is entitled to judgment as a

matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In

determining whether any genuine issue as to any material fact exists, evidence is

to be liberally construed in favor of the party opposing the motion for summary

judgment. Florom v. Elliott Mfg., 867 F.2d 570, 574 (10th Cir. 1989). 

As to Plaintiff’s claim of sexual discrimination, we agree with the district

court’s grant of summary judgment to Defendant. The County has submitted

legitimate, nondiscriminatory reasons for Plaintiff’s termination–her inappropriate

behavior with co-workers and her numerous unexcused absences. It is Plaintiff’s

burden to articulate how the County’s proffered reasons are unworthy of belief.

See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-49 (2000);

Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995). Plaintiff does not

dispute the veracity of these purported reasons; rather, she defends that they were
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the result of her depression. While Plaintiff’s explanation may be the sad truth, it

does not satisfy her burden of showing that the County’s stated reasons for her

termination were pretextual. 

Plaintiff has also failed to produce evidence to establish that she was a

qualified individual with a disability under the Americans with Disabilities Act

(ADA). To withstand summary judgment on her ADA claim, Plaintiff “must

show that (1) she is disabled within the meaning of the ADA, (2) she is able to

perform her essential job functions with or without reasonable accommodation,

and (3) [the County] discriminated against her in [its] employment decisions

because of her alleged disability.” Croy v. Cobe Laboratories, Inc., 345 F.3d

1199, 1203-04 (10th Cir. 2003). A disability, as defined by the ADA, is “(A) a

physical or mental impairment that substantially limits one or more of the major

life activities of such individual; (B) a record of such impairment; or (C) being

regarded as having such an impairment.” Id. at 1204 (citing Sutton v. United Air

Lines, Inc., 527 U.S. 471, 478 (1999)). Plaintiff has not produced evidence that

she was substantially impaired or significantly restricted in any major life

activity. Although she attests that her intermittent depressive episodes caused her

difficulty in sleeping and getting along with her co-workers, she has not shown

how these limitations prevented her from performing her job “or that she is

unable to perform any of the life activities completely.” Croy, 345 F.3d at 1204

(finding plaintiff suffering from multiple sclerosis not disabled under meaning of
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ADA). Consequently, we agree with the district court’s grant of summary

judgment to Defendant on this claim.

We also determine that Plaintiff’s claim for retaliation under the FMLA is

without merit. In order to make a prima facie case of reprisal, “a plaintiff must

show (1) protected employee action; (2) adverse action by an employer either

after or contemporaneous with the employee's protected action; and (3) a causal

connection between the employee's action and the employer's adverse action.” 

Morgan v. Hilti, Inc., 108 F.3d 1319, 1324 (10th Cir. 1997). A causal connection

between Plaintiff’s exercise of FMLA leaves and her eventual termination is not

supported by the record. The County’s stated reason for Plaintiff’s

termination–her difficulty in getting along with coworkers–is documented

beginning in 1997 (two years prior to Plaintiff’s extended FMLA leaves). 

Plaintiff has failed to show that this reason was pretextual. See, e.g., Stewart v.

Adolph Coors Co., 217 F.3d 1285, 1289 (10th Cir. 2000) (noting shift of burden

in race discrimination case).

As to the state cause of action for breach of contract, Plaintiff claims that at

the time of her dismissal the County breached its contract by failing to provide

her with the appropriate procedural protections that were stated in its policies. 

There is a dispute in the record over whether the County followed its policies at

the time Plaintiff signed her release. Specifically, Plaintiff claims that the County

did not inform her that she would have the right to file a grievance if she chose
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not to resign. The County maintains that Plaintiff was not only fully informed of

her options but, more importantly, that her signing of a release negates any claims

that Plaintiff may assert against the County. The district court chose not to

address the release, but instead concluded that Plaintiff “failed to identify a single

promise that . . . the County failed to perform,” notwithstanding Plaintiff’s claim

of denial of procedural rights in her discharge. The district court declined to rule

on the validity of the release, apparently concluding that no contractual right had

been breached. The district court granted summary judgment to the County on

Plaintiff’s state law claim. It appears from the sparse record before us that the

trial court did not apprehend Plaintiff’s breach of contract claim. We interpret the

gravamen of Plaintiff’s state law claim to be duress in the execution of a release,

relying on Wiesen v. Short, 604 P.2d 1191, 1192 (Colo. Ct. App. 1979). 

We note that the pre-trial dismissal of all federal law claims, leaving only a

state law claim, generally prevents a district court from reviewing the merits of

the state law claim. See 28 U.S.C. § 1367(c)(3); see also Thatcher Enters. v.

Cache County Corp., 902 F.2d 1472, 1478 (10th Cir. 1990) (“Notions of comity

and federalism demand that a state court try its own lawsuits, absent compelling

reasons to the contrary.”); Jones v. Intermountain Power Project, 794 F.2d 546,

549 (10th Cir. 1986) (“If a federal claim against a party is dismissed before trial,

the pendent state law claims should often be dismissed as well.”), rev’d on other

grounds, Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820 (1990). 
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In this case, given the spare attention devoted to the state law claim in the

parties’ briefs and the district court opinion, it is necessary for us to remand for

further development to decide whether summary judgment is appropriate. We

cannot say, at this juncture, that it would be an abuse of the district court’s

discretion to retain the state law claim, however we commend to the court the

Supreme Court’s cautions contained in Carnegie-Mellon University v. Cohill: 

“[I]n the usual case in which all federal-law claims are eliminated before trial, the

balance of factors to be considered under the pendent jurisdiction

doctrine–judicial economy, convenience, fairness, and comity–will point toward

declining to exercise jurisdiction over the remaining state-law claims.” 484 U.S.

343, 350 n.7 (1988).

Consequently, we AFFIRM the district court’s grant of summary judgment

to Defendant on all claims except the state breach of contract claim, which we

REMAND to the district court for either clarification of the state law claim or, in

the alternative, dismissal.