F I L E D

United States Court of Appeals

Tenth Circuit

JUN 30 1999

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

 

BOBBIE R. ANDERSON,

Plaintiff-Appellant,

v. No. 98-1261

COORS BREWING COMPANY,

Defendant-Appellee.

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. 97-CV-1857-N)

 

Mark A. Neider (John M. Connell with him on the briefs), of The Connell Law Firm,

Denver, Colorado, for Plaintiff-Appellant. 

K. Preston Oade, Jr. (Katherine J. Peck and Kelly M. Condon on the brief), of Holme,

Roberts, & Owen, Denver, Colorado, for Defendant-Appellee. 

 

Before BALDOCK, KELLY, and MURPHY, Circuit Judges.

 

BALDOCK, Circuit Judge.

 

Plaintiff Bobbie R. Anderson appeals the district court’s order granting summary

judgment to Defendant Coors Brewing Company. Plaintiff’s complaint alleged that

Defendant terminated her because of her disability in violation of the Americans With
2

Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. Plaintiff also alleged that she was

discharged in retaliation for filing a claim with the Equal Employment Opportunity

Commission (EEOC). Our jurisdiction arises under 28 U.S.C. § 1291. We affirm.

I.

Plaintiff suffers from multiple sclerosis (MS), a chronic nerve disorder for which

no cure exists. As a result, Plaintiff suffers from numbness, pain, fatigue, cramps, blurred

vision, fainting spells, forgetfulness, loss of balance and incontinence. Plaintiff’s

condition limits, among other things, her ability to lift heavy objects, work in a hot

environment and stand for long periods of time.

On May 20, 1996, Defendant hired Plaintiff as a Temporary Production Operator

(TPO). TPO positions may last no longer than 1,480 hours and persons filling the

positions do not receive medical or dental benefits, life insurance or paid vacation time. 

TPOs are expected to work at a variety of locations throughout Defendant’s brewery on

an “as needed” basis. Although TPOs are not required to perform every job in the

brewery without assistance, a TPO must be able to perform a wide variety of functions in

a wide variety of conditions. For example, TPOs may be required to lift heavy objects,

climb ladders, walk on suspended walkways, inspect cans, stack pallets, clear jams in the

production line, and operate machinery in environments described as hot, cold, moist,

damp, noisy and dusty.

While working for Defendant, Plaintiff worked above “the ovens” retrieving cans
3

thrown from the conveyor system, on the loading docks making cardboard boxes, filling

boxes with defective cans, retrieving empty pallets, placing boxes of cans on the pallets,

taping the boxes, and labeling pallets. Plaintiff also worked as a can sorter. On June 28,

1996, Plaintiff missed work for what she described as flu-like symptoms. She returned

the next working day. On July 2, 1996, Plaintiff’s husband informed Defendant that

Plaintiff was having work-related difficulties. Defendant’s representantives met with

Plaintiff to discuss her problems. She informed them that she suffered from MS and was

being pushed too hard. Defendant referred Plaintiff to its medical center for evaluation

and informed her that it would attempt to accommodate any work restrictions. The

medical center sent Plaintiff to her own physician.

Plaintiff’s physician, Dr. Henbest, placed her under several preliminary work

restrictions which she reported to Defendant. Initially, Dr. Henbest suggested that

Plaintiff be allowed to work in a cool environment; preferably less than eighty degrees

Fahrenheit. Later, he opined that Plaintiff could not:

a. operate man lifts, forklifts, motor vehicles, or high-speed or dangerous

machinery.

b. walk or stand more than twenty minutes per hour.

c. stoop, bend or twist more than ten times per hour.

d. lift over twenty pounds to a height of thirty inches more than ten times per

hour.

e. push or pull over twenty pounds more than ten times per hour.

f. climb ladders, racks, etc.

g. work at unprotected heights over six feet.

h. work more than eight hours per day. 

Plaintiff requested that Defendant accommodate her disability by allowing her to sit on a
4

stool while she sorted cans, wear a camel back water bottle to control her internal heat,

place a fan or other cooling device near her to control her external heat and to supply her

with a safety harness when necessary. Defendant examined Plaintiff’s work restrictions

and her requests for accommodation and determined that she could not perform the

functions required to work as a TPO. Therefore, on October 4, 1996, Defendant

terminated her employment.

Plaintiff filed suit in the district court alleging that Defendant violated the ADA by

terminating her because she suffered from MS. Plaintiff also alleged that Defendant

terminated her because she filed a complaint with the EEOC. Defendant filed a motion

for summary judgment arguing that: (1) Plaintiff was not disabled; (2) Plaintiff was not

qualified for the position even with reasonable accommodation; and (3) Plaintiff failed to

establish that Defendant’s proffered reason for terminating her was pretextual. The

district court determined that Plaintiff was not qualified for the position and that she

failed to demonstrate that Defendant’s reason for firing her was pretextual. Accordingly,

the court granted Defendant’s motion for summary judgment. The instant appeal ensued.

II.

A.

Plaintiff contends that the district court erred in granting Defendant’s motion for

summary judgment. We review the district court’s grant of summary judgment de novo. 

Marx v. Schnuck Markets, Inc., 76 F.3d 324, 327 (10th Cir. 1996). Applying this
5

standard, we examine the factual record and reasonable inferences drawn therefrom in a

light most favorable to the nonmoving party. Byers v. City of Albuquerque, 150 F.3d

1271, 1274 (10th Cir. 1998). We will uphold the decision only if no genuine issue of

material fact exists and the party is entitled to judgment as a matter of law. Marx, 76 F.3d

at 327. A mere scintilla of evidence supporting the nonmoving party’s theory does not

create a genuine issue of material fact. Id. Instead, the nonmoving party must present

facts such that a reasonable jury could find in its favor. Id.

In order to sustain a claim under the ADA, Plaintiff must establish that:

1. she is a disabled person within the meaning of the ADA;

2. she is qualified, i.e., she can, with or without reasonable accomodation

perform the essential functions of her job; and

3. the employer terminated her because of her disability.

White v. York Int’l Corp., 45 F.3d 357, 360-61 (10th Cir. 1998). The parties do not

dispute on appeal that Plaintiff has provided evidence that she is disabled within the

meaning of the ADA. Accordingly, we must determine whether she is “qualified” under

the ADA.

We have adopted a two-part test for determining whether a person is qualified

under the ADA. Milton v. Scrivener, 53 F.3d 1118, 1123 (10th Cir. 1995). First, we

examine whether the individual can perform the essential functions of the job, i.e.,

functions that bear more than a marginal relationship to the job at issue. Id. Second, if

we conclude that the individual is not able to perform the essential functions of the job at

issue, we must determine whether any reasonable accommodation by the employer would
6

enable her to perform those functions. Id. 

In determining whether Plaintiff was qualified, the district court looked at the

essential functions which must be performed by a TPO. Examining those functions, the

district court concluded that Plaintiff was not qualified for the job. Plaintiff argues that

the district court erred by defining the essential functions of her employ as those of a

TPO. Plaintiff contends that she was hired as a can sorter, not a TPO. Thus, she argues,

the district court should have limited its inquiry to the essential functions of a can sorter. 

We disagree. 

The record clearly shows that Defendant hired Plaintiff as a TPO and assigned her

to a can sorting line. She admitted as much in both her opening brief and her response to

Defendant’s motion for summary judgment. Plaintiff’s argument is nothing more than an

attempt to twist from the appellate record an issue of fact where none exists.

We also reject Plaintiff’s argument that the district court should have considered

only the essential functions of a can sorter position because she spent most of her time in

that position. Plaintiff worked for Defendant for sixteen days. Although she spent the

majority of her time on the can-sorting line, she worked in five different areas and

performed a variety of tasks. Defendant requires TPOs to perform numerous tasks on an

as needed basis for a period of approximately 185 days. The fact that Defendant spent the

majority of her sixteen days on the can sorting line does not mean that Defendant

narrowed her job description from TPO to can sorter. The district court properly
7

considered the essential functions of a TPO in determining whether Plaintiff was

qualified.

Plaintiff further contends that the district court’s failure to limit its determination

of essential functions to those of a can sorter effectively undermines the protections

afforded by the ADA. The crux of this argument appears to be that the TPO position is so

demanding that nobody can perform all of the functions of the job. Thus, Plaintiff

contends that an employer may undermine the ADA by hiring people as a TPO and, upon

learning that they are disabled, fire them under the guise that they are not able to perform

the essential functions of the job. We disagree.

It is not the province of the court to undermine the legitimate operation of a

production facility. Milton, 53 F.3d at 1124. In many situations, an employer may create

a position, the nature of which, requires an employee to perform a multitude of tasks in a

wide range of environments. The Seventh Circuit recently examined such a position. In

Miller v. Illinois Dept. of Corrections, 107 F.3d 483, 485 (7th Cir. 1997), a corrections

officer was involved in a serious car accident. As a result, she suffered severe vision

impairment which required the use of a seeing-eye dog. Because of her problem, the

Department of Corrections (DOC) terminated her because she could not perform the

essential functions of her job. 

The DOC described the essential functions of the job as standing guard, counting

inmates, inspecting for contraband, escorting inmates outside their cells, searching
8

inmates and visitors, searching for escaped prisoners, being on 24-hour call to respond to

emergencies, operating a switchboard and issuing guns to correctional officers. The

plaintiff filed suit alleging violation of the ADA. She argued that she was a qualified

individual because she could operate the switchboard and issue guns to officers. 

Rejecting her argument, the Seventh Circuit explained:

It seems to us . . . that if an employer has a legitimate reason for specifying

multiple duties for a particular job classification, duties the occupant of the

position is expected to rotate through, a disabled employee will not be

qualified for the position unless [s]he can perform enough of these duties to

enable a judgment that [s]he can perform its essential duties . . . If it is

reasonable for a farmer to require each of his farmhands to be able to drive

a tractor, clean out the stables, bale the hay, and watch the sheep, a

farmhand incapable of performing any of these tasks except the lightest one

(watching the sheep) is not able to perform the essential functions of the

position . . . . In the case of correctional officers . . . the reason for having

multiply able workers who rotate through the different duty positions is to

be able to respond to unexpected surges in the demand for particular

abilities. The prison has to be able to call upon its full staff of correctional

officers for help in putting down a prison riot, and therefore each officer

must have experience in the positions . . . as well as the capability [to

respond]. It would not do to have a correctional officer whose only

experience and capability were in operating a telephone switchboard or

issuing weapons.

Id.

The record clearly demonstrates that the TPO position is a multiple duty job

classification which serves a legitimate business purpose. Defendant runs a large

operation which brews, packages and ships its product. The TPO position allows

Defendant to rotate workers on an as needed basis to different parts of its operation in

response to “surges in the demand for particular abilities.” See id. It is employer’s
1

 We note that while Defendant argues a reasonable accommodation in this case

would be to limit the assignments she could receive as a TPO, she does not argue that

Defendant was required to reassign her to another position within the company. See

Smith v. Midland Brake, Inc., __F.3d__, 1999 WL 387498 (10th Cir. 1999) (en banc).

9

province to define the job and the functions required to perform it. Milton, 53 F.3d at

1124. The record contains no evidence suggesting that the TPO position does not serve a

legitimate business purpose. Accordingly, we will not secondguess the employer’s

judgment. 

B.

Citing no relevant authority, Plaintiff next argues that the district court erroneously

determined that no issue of fact exists as to whether she could perform the essential

functions of her job with reasonable accommodation. Although unclear, this argument

appears to restate, at least in part, her argument that the essential functions of her job are

those of a can sorter, not a TPO. We have rejected this argument and need not repeat

ourselves here. Suffice to say, the essential functions of her job are clearly those of a

TPO and not a can sorter. 

Plaintiff’s brief could also be construed as arguing that the district court failed to

recognize a genuine issue of fact as to whether modification of her work assignment was

a reasonable accomodation.1

 Thus, we must examine the accommodation she contends is

reasonable. Plaintiff suggests that Defendant could reasonably accommodate her by

placing her on the can-sorting line, providing localized air-conditioning and allowing her
10

to sit on a stool while wearing a camelback water pack.

Plaintiff’s requested accommodation is unreasonable. Plaintiff’s request would

transform the TPO position from one which requires an employee to perform multiple

tasks ranging from visual inspection of cans, to heavy lifting, to climbing ladders, to

operating machinery, to one which requires an employee to sit in one place and perform

one task. Such a request fundamentally alters the nature of the position. Defendant is

under no obligation to change the structure of its business or create a new position for

Plaintiff. Milton, 53 F.3d at 1124-25. Nor is Defendant required to make its other TPOs

perform all of the operation’s demanding tasks while Plaintiff performs only certain light

tasks. Id. Because Plaintiff requests accommodations which Defendant is not legally

obligated to make, we reject this argument as well.

For the foregoing reasons, we conclude Plaintiff failed to show that she could

perform the essential functions of a TPO position with or without reasonable

accommodation. Accordingly, the district court properly concluded that Plaintiff failed to

establish a prima facie case of discrimination under the ADA. 

 C.

We turn next to Plaintiff’s retaliation claim. The analytical framework pronounced

in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), guides our review

of this claim. Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997). Under that

framework, Plaintiff must establish a prima facie case of retaliation. Id. Once the
11

Plaintiff establishes a prima facie case, the burden shifts to Defendant to come forward

with a non-discriminatory reason for its employment decision. Id. If the employer

presents a non-discriminatory reason for its decision, the burden shifts back to the

Plaintiff to show that “there is a genuine issue of material fact as to whether the

employer’s proferred reason for the challenged action is pretextual, i.e., unworthy of

belief.” Id. 

In considering Plaintiff’s retaliation claim, the district court determined that

Plaintiff made a prima facie case based on the temporal proximity of her termination to

her EEOC and ADA complaints. In response to the prima facie showing, Defendant

presented evidence showing that it terminated Plaintiff because she was not qualified for

her position. The district court found that Plaintiff failed to show that Defendant’s

proffered reason for terminating her was pretexual. Thus, the district court granted

Defendant’s motion for summary judgment. 

Defendant urges us to uphold the grant of summary judgment on the grounds that,

contrary to the district court’s finding, Plaintiff failed to prove a prima facie case of

retaliation. In order to establish a prima facie case, Plaintiff must show:

1) she engaged in a protected activity;

2) she was subjected to adverse employment action subsequent to or

contemporaneous with the protected activity; and 

3) a causal connection between the protected activity and the adverse employment

action.

Morgan, 108 F.3d at 1324. By filing an EEOC claim, Plaintiff engaged in protected
12

activity. McCue v. State of Kansas, 165 F.3d 784, 789 (10th Cir. 1999). Thus, we must

determine whether she was subjected to adverse employment action. 

This circuit liberally defines the phrase “adverse employment action.” Jeffries v.

Kansas, 147 F.3d 1220, 1232 (10th Cir. 1998). We have not, however, defined a set rule

regarding what constitutes an “adverse employment action.” Id. Instead, we take a caseby-case approach in determining whether a given employment action is “adverse.” Id. 

We do so recognizing that the ADA, like Title VII, is neither a “general civility code” nor

a statute making actionable the “ordinary tribulations of the workplace.” Gunnell v. Utah

Valley State College, 152 F.3d 1253, 1265 (10th Cir. 1998).

Plaintiff presents two items of evidence which she claims are “adverse

employment actions.” First, she claims Defendant’s act in terminating her is an adverse

employment action. Second, she claims she suffered “adverse employment action” when

someone placed “harassing” phone calls to her home from one of Defendant’s phone

lines.

We conclude that Plaintiff suffered adverse employment action when Defendant

terminated her. See Roberts v. Roadway Express, Inc., 149 F.3d 1098, 1104 (10th Cir.

1998). The phone calls, however, do not constitute adverse employment action. The

phone calls, placed from one of Defendant’s phone lines, consisted of background music

with occasional laughter. The caller[s] did not mention Plaintiff’s EEOC claim, made no

threats, and gave no indication of their identity. Plaintiff presents no evidence that the
2Assuming she was terminated on July 8, 1996, Plaintiff cannot make a prima facie

showing of retaliation. Plaintiff did not file a charge with the EEOC until July 25, 1996. 

Keeping in mind that Plaintiff contends she was fired for filing this charge, there can be

no retaliation under this scenario because the charge was filed after her termination. See

Gunnell, 152 F.3d at 1262 (employee must be subjected to adverse employment action

13

calls were placed by any of Defendant’s employees with decision-making capacity or that

management condoned the activity. While the calls were no doubt annoying, they do not

amount to adverse employment action.

Having concluded that the only adverse employment action suffered by Plaintiff

was her termination, we must now determine whether termination, standing alone, is 

sufficient to establish causation. The date of Plaintiff’s termination is key to this inquiry

because the closer it occurred to the protected activity, the more likely it will support a

showing of causation. Compare Ramirez v. Oklahoma Dept. of Mental Health, 41 F.3d

584, 596 (10th Cir. 1991) (one and one-half month period between protected activity and

adverse action may, by itself, establish causation) with Richmond v. ONEOK, Inc., 120

F.3d 205, 209 (10th Cir. 1997) (three-month period, standing alone, is insufficient to

establish causation). Some confusion exists as to when Plaintiff was terminated. 

Defendant contends that it terminated Plaintiff on October 4, 1996. Plaintiff filed an

EEOC complaint on July 28, 1996, alleging that she was terminated on July 8, 1996. In

her briefs, Plaintiff contends that she was not terminated until after August 27, 1997. In

determining whether a causal nexus exists, we will accept the date most favorable to her,

October 4, 1996.2 Byers, 150 F.3d at 1274. 
subsequent to or contemporaneous with the protected activity).

14

Accepting the October 4, 1996 date as true, Defendant terminated Plaintiff

approximately two months and one week after she filed her EEOC claim. A retaliatory

motive may be inferred when an adverse action closely follows protected activity. 

Chavez v. City of Arvada, 88 F.3d 861, 866 (10th Cir. 1996). However, unless the

termination is very closely connected in time to the protected activity, the plaintiff must

rely on additional evidence beyond temporal proximity to establish causation. Connor v.

Schnuck Markets, Inc., 121 F.3d 205, 209 (10th Cir. 1997) (emphasis added). For

example, we have held that a one and one-half month period between protected activity

and adverse action may, by itself, establish causation. Ramirez, 41 F.3d at 596. By

contrast, we have held that a three-month period, standing alone, is insufficient to

establish causation. Richmond, 120 F.3d at 209. Thus, we find ourselves three weeks

short of three months and three weeks past one and one-half months. We need not decide

on which side the line should be drawn, however, because assuming two months and one

week is sufficient to support a prima facie case of retaliation, Plaintiff cannot prove that

Defendant’s proffered reason for terminating her was pretextual.

A plaintiff may show pretext by demonstrating “such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate

reasons for its action that a reasonable factfinder could rationally find them unworthy of

credence and hence infer that the employer did not act for the asserted non-discriminatory
15

reasons.” Morgan, 108 F.3d at 1323. Mere conjecture that the employer’s explanation is

pretext is insufficient to defeat summary judgment. Id. 

The district court found that Plaintiff established a prima facie case of retaliation. 

The burden then shifted to Defendant who asserted that it terminated Plaintiff because she

was not qualified to perform her job with or without reasonable accomodation. The

district court concluded that Plaintiff failed to show pretext and granted summary

judgment in Defendant’s favor. 

Plaintiff contends that the district court erroneously concluded that she did not

present evidence showing Defendant’s argument was pretextual. First, she argues that a

genuine issue of material fact existed as to whether she was qualified for the position,

thus, a fact issue exists as to whether Defendant’s proferred reasoning for terminating her

was pretextual. Second, she argues that she rebutted Defendant’s reason for terminating

her by presenting evidence that she received harassing phone calls from Defendant’s

place of business before she was terminated.

We do not agree with either argument. As previously discussed, the record clearly

shows that Plaintiff cannot perform the essential functions of her job and is, therefore, not

qualified. Similarly, the “harassing” phone calls are so innocuous in nature that they

cannot undermine Defendant’s proffered reason for terminating her. Thus, Plaintiff is left

with the temporal proximity between filing her EEOC complaint and termination.

Assuming the time between Plaintiff’s termination and filing her EEOC claim is
16

sufficient to survive summary judgment in regard to establishing a prima facie case, it

cannot overcome Defendant’s proffered reason for terminating her. The evidence

overwhelmingly supports Defendant’s proffered reason and Plaintiff presents nothing

which would cause a reasonable finder of fact to determine that the reason is unworthy of

belief. See Grady v. Shawnee Public School District I-93, 1998 WL 852533 at *6 (10th

Cir. 1998) (unpublished); Jackson v. Delta Special School Dist. No. 2, 86 F.3d 1489,

1494-95 (8th Cir. 1996). Therefore, Plaintiff cannot show pretext. The district court

properly granted summary judgment on this claim. 

AFFIRMED.