F I L E D

United States Court of Appeals

Tenth Circuit

APR 23 2004

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SHIRLEY J. BONES,

Plaintiff - Appellant,

v. No. 02-3378

HONEYWELL INTERNATIONAL,

INC., formerly known as AlliedSignal,

Inc.,

Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D.C. NO. 00-CV-4129-SAC)

David O. Alegria, McCullough, Wareheim & LaBunker, P.A., Topeka, Kansas,

for Plaintiff - Appellant.

J. Nick Badgerow (Katherine A. Hansen with him on the brief), Spencer, Fane,

Britt & Browne, LLP, Overland Park, Kansas, for Defendant - Appellee.

Before MURPHY , HOLLOWAY , and McCONNELL , Circuit Judges.

MURPHY , Circuit Judge.
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I. INTRODUCTION

Plaintiff-appellant Shirley J. Bones, who suffers from tendinitis, worked for

defendant-appellee Honeywell International, Inc., and its predecessor since 1986. 

In July 1999, Bones was notified that Honeywell deemed her to have voluntarily

terminated her employment because she neither reported to work nor notified her

supervisor or team of her absences on three consecutive working days, in

violation of company policy. Bones filed for workers’ compensation six months

after her termination from Honeywell.

Bones filed complaints with the Kansas Human Rights Commission

(“KHRC”) and the Equal Employment Opportunity Commission (“EEOC”), which

gave her a Notice of Suit Rights. Bones then sued Honeywell in the United States

District Court for the District of Kansas, alleging violations of the Family and

Medical Leave Act (“FMLA”), the Americans with Disabilities Act (“ADA”), and

Kansas state law.

Honeywell moved for summary judgment on all claims. The district court

granted Honeywell’s motion for summary judgment, concluding, in relevant part,

that: 1) Bones did not establish a prima facie case of retaliatory discharge in

violation of Kansas state law; 2) Bones’ violation of Honeywell’s attendance

policy was a legitimate, non-retaliatory reason for Bones’ discharge; 3) Bones did

not provide the proper notice for leave under the FMLA; 4) Honeywell would
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have dismissed Bones regardless of her request for an FMLA leave because she

failed to comply with its notification of absence policy; 5) Bones is not disabled

within the meaning of the ADA; 6) Bones did not establish a prima facie case of

retaliation under the ADA; and 7) Bones’ violation of Honeywell’s attendance

policy was a legitimate, non-retaliatory reason for Bones’ termination, and such a

reason was not pretext for retaliation in violation of the ADA. Bones appeals.

Exercising jurisdiction pursuant 28 U.S.C. § 1291, this court affirms the

district court’s grant of summary judgment to Honeywell.

II. BACKGROUND

Bones developed tendinitis in her elbow in 1989 after injuring it while

throwing and stacking wood at home. Bones informed appellee of her elbow

injury shortly thereafter, noting that it was not work-related.

In June 1997, Bones saw her personal physician, Dr. Severa, for a tendinitis

flare-up and received a medical note enumerating restrictions with which

Honeywell complied. Bones testified that she informed her then-supervisor,

David McFadden, that she believed her injury was work-related. On July 2, 1997,

Bones requested “work comp papers” from Honeywell’s medical department. 

Bones testified that she told the nurse, Robin Thompson, that she suffered from a

work-related injury. Thompson, however, testified that Bones never told her that

her elbow injuries were work-related. Thompson gave Bones the workers’
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compensation handbook and explained the differences between workers’

compensation and private insurance. Thompson never directed Bones to forego

any remedies under the workers’ compensation act. Bones indicated that she

would “think about” filing a workers’ compensation claim or staying with her

primary care provider, but did not file a workers’ compensation claim during her

employment with Honeywell. Honeywell’s in-house physician, Dr. Steelman, also

evaluated Bones in July 1997, and his notes indicate that her elbow condition was

non-occupational. Steelman recommended accommodations for Bones’ elbow

condition with which McFadden complied.

Bones was granted several short-term disability leaves for elbow-related

reasons at various times throughout 1997 and 1998. Each time she requested sick

leave prior to July 1999, Bones advised her supervisor that she was going to be

off work. Bones admitted in her deposition, however, that she also had a large

number of unexcused absences during the 1990s and was warned by McFadden

that her tardiness was unsatisfactory and that she could be terminated for it.

Honeywell accommodated Bones’ elbow restrictions by moving her to a file

clerk position in customer service and then to a position in subassembly. In

addition, Dr. Steelman evaluated Bones’ workstation and recommended

modifications which were made to accommodate Bones’ elbow problems. The

subassembly position was under Shawn Reniker’s supervision. Reniker testified
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that he knew that Bones had work restrictions but did not know about any alleged

work-related injury. Neither the medical department nor McFadden told Reniker

that Bones’ restrictions were related to a workers’ compensation claim.

Bones went on a medical leave of absence from September 2, 1998, until

October 11, 1998, and notified her supervisor of that fact. Bones did not return to

work on the date her leave expired. Consequently, Honeywell sent her a notice

letter on October 21, 1998, stating that according to company policy, three

consecutive days of absence without notice is considered voluntary termination,

and that Bones would be terminated if she did not return to work or notify

Reniker of the reason for her absence. Bones denies having received this letter

but admits that Reniker told her it had been sent. Upon returning to work, Bones

informed Reniker that she had called in her absences. Reniker testified that

Bones was allowed to retain her job because “[there] was a mix-up,” as Reniker

had not realized that she had called in her absences.

In January 1999, Bones began working as a material handler under

Reniker’s supervision. Bones was able to perform all the functions of the

material handler position except the heavy lifting, which other employees did for

her upon her request. Bones admitted that she did not recall telling Reniker that

her elbow injury happened at work. Bones also admitted that she never told

Reniker that she filed or was going to file a workers’ compensation claim. 
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Bones took vacation and personal days on July 19, 20, and 21, 1999. She

called in those absences by reporting them to a co-worker, Judy Fuller, but did not

mention any work injury. Bones went to see Dr. Severa on July 22, 1999, because

of elbow and stress problems. She neither went to work nor called in her absence

that day. Likewise, Bones neither reported to work nor called in her absences on

Friday, July 23 or Monday, July 26, 1999. Bones’ boyfriend Todd Roe, however,

delivered a medical leave of absence request from Bones to Honeywell’s medical

department on Friday, July 23. Roe simply handed in the forms and did not tell

anyone in the medical department that Bones’ leave request was for a workrelated injury. The medical leave request was completed by Dr. Severa and

indicated that he had seen her on July 22 and that she was unable to work from

July 18, 1999, until August 16, 1999. Bones’ medical leave request was not

processed, however, until Thursday, July 29, because of the medical department’s

practice of processing medical leave requests only on Thursdays.

Bones was notified by letter dated Tuesday, July 27, 1999, that she was

deemed to have voluntarily terminated her employment because she neither

reported to work nor notified her supervisor or team about her absences on July

22, 23, and 26. The decision to terminate her employment was made on July 27

by Reniker and Honeywell’s Human Resources Manager, April van Rensburg. 

Nurse Thompson, Dr. Steelman and others in the medical department did not
1Bones argues, however, that Reniker knew, prior to firing her, that she had

an arm injury and that her arm injury was caused by her work. Bones’ relevant

testimony, however, merely states that “[Reniker] knew I had surgery and that it

bothered me to do the repetitious work.” Bones also testified that she did not

specifically recall telling Reniker that the injury to her elbow happened at work. 

Consistently, Reniker testified that he only knew that Bones was subject to workplace restrictions but did not know, prior to firing her, that her restrictions were

due to a work-related injury or related to a potential workers’ compensation

claim. Reniker had no access to the information Bones provided to Honeywell’s

medical department unless it was specifically communicated to him by that

department. Evidence shows that the medical department did not communicate

with Reniker or van Rensburg, prior to July 30, about the reason for Bones’

absences from work on July 22, 23, and 26 of 1999. In addition, there is no

evidence that either Reniker or van Rensburg knew that these absences were due

to a work-related injury or a potential worker’s compensation claim. Reniker

testified that Bones had historically been absent from work for a variety of

reasons, and he could not have known, unless specifically told, whether a

particular unexcused absence was due to medical problems. Given this

evidentiary basis, the district court did not err in concluding that Reniker and van

Rensburg did not know that Bones had applied for a medical leave or had a workrelated injury when they terminated her employment.

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participate in the decision to terminate Bones. Reniker and van Rensburg

testified that they terminated Bones because she did not show up to work for three

consecutive days and did not notify her supervisor of those absences, in violation

of Honeywell policy. The district court concluded that at the time of the decision

to terminate Bones, neither Reniker nor van Rensburg knew 1

 that Bones had

applied for a medical leave of absence, had an alleged work-related injury, or

could have potentially filed for workers’ compensation. Evidence in the record

supports this conclusion.
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Bones admits that she understood that absence from work for three

consecutive working days without notice is grounds for termination. Bones

claims, however, that she was unaware that it was mandatory for her to notify her

department or supervisor in addition to submitting a request for a medical leave of

absence to the medical department. Honeywell’s medical leave of absence

procedure forms explicitly provided: “[y]ou must follow the ‘call-in policy’ for

your department. Health Services will not call your manager for you .”

(emphasis in original). Bones admitted that she received this form at least one or

more times when she requested sick leaves prior to July 1999. In addition, the

human resources department “in all circumstances . . . told associates that it was

their responsibility and their accountability to notify their supervisor [about

absences due to a pending medical leave request, and] that medical would not do

that.”

The call-in policy for Bones’ department at the relevant time was to notify

Reniker of any absences. Bones testified, however, that she had been told by

Reniker that if she needed to be off work for a medical condition, she was to

“deal with the medical department and the medical department would

communicate with him.” Consistently, Reniker testified that he trained Bones to

deal with the medical department if she needed a medical leave. In addition,
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however, Reniker specifically communicated to Bones that it was her

responsibility to call him if she was going to be absent from work.

III. DISCUSSION

This court reviews a district court’s grant of summary judgment de novo . 

Cone v. Longmont United Hosp. Ass’n , 14 F.3d 526, 527 (10th Cir. 1994). 

Summary judgment is appropriate when there is no genuine issue of material fact

and the moving party is entitled to judgment as a matter of law. Cone , 14 F.3d at

528. There is no genuine issue of material fact unless the evidence, construed in

the light most favorable to the non-moving party, is such that a reasonable jury

could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc. ,

477 U.S. 242, 248, 255 (1986). Unsubstantiated allegations carry no probative

weight in summary judgment proceedings. Phillips v. Calhoun , 956 F.2d 949,

951 n.3 (10th Cir. 1992). To defeat a motion for summary judgment, evidence,

including testimony, must be based on more than mere speculation, conjecture, or

surmise. See Rice v. United States , 166 F.3d 1088, 1092 (10th Cir. 1999); Allen

v. Muskogee , 119 F.3d 837, 846 (10th Cir. 1997). Furthermore, this court may

affirm a grant of summary judgment on grounds other than those relied on by the

district court when the record contains an adequate and independent basis for that

result. Cone , 14 F.3d at 528.
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Kansas State Law Claim

The district court correctly granted summary judgment to Honeywell on

Bones’ state law claim. In order to establish a claim of retaliatory discharge

under Kansas law, a plaintiff must prove that: (1) she filed a claim for workers’

compensation benefits or sustained an injury for which she might assert a future

claim for benefits; (2) defendants had knowledge of her workers’ compensation

claim or of her sustaining a work-related injury for which she might file a future

claim for benefits; (3) defendants terminated her employment; and (4) a causal

connection exists between her termination and her protected activity or injury. 

See Foster v. AlliedSignal, Inc. , 293 F.3d 1187, 1193 (10th Cir. 2002); Sanjuan v.

IBP, Inc. , 160 F.3d 1291, 1298 (10th Cir. 1998).

The district court did not err in granting Honeywell summary judgment on

Bones’ state law retaliation claim because, even assuming, arguendo , that Bones

could prove the other elements of a prima facie case, she has failed to produce

evidence from which a reasonable jury could infer a causal connection between

her termination and her potential filing of a workers’ compensation claim. To

establish the requisite causal connection, a plaintiff must prove an unlawful intent

on the part of the employer to terminate her because she had filed a workers’

compensation claim or had sustained a work-related injury for which she might

file such a claim. See Bausman v. Interstate Brands Corp ., 252 F.3d 1111, 1116
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(10th Cir. 2001). The mere act of firing an injured employee for excessive

absences or for violation of an absenteeism policy does not implicate an improper

retaliatory motive, particularly when the decision-makers were not aware that the

absences were due to work-related injuries. Ramirez v. IBP Inc. , 913 F. Supp.

1421, 1436 (D. Kan. 1995). Bones must instead show that, at the time of her

discharge, the decision-makers who terminated her employment were aware or

should have been aware that the absences for which she was discharged were the

result of a work-related injury. Foster , 293 F.3d at 1193.

Bones has offered no evidence, aside from her speculation about Reniker’s

and van Rensburg’s motives, that the decision to terminate her was driven by an

unlawful intent to retaliate for her potential filing for workers’ compensation. 

Testimony which is grounded on speculation does not suffice to create a genuine

issue of material fact to withstand summary judgment. See Rice , 166 F.3d at

1092; Allen, 119 F.3d at 846. Reniker and van Rensburg testified that they did

not know, at the time they decided to terminate Bones, that Bones had a workrelated injury for which she could file for workers’ compensation. They both

testified that they terminated Bones solely because of her absences in violation of

Honeywell policy. Nothing in the record contradicts Reniker’s and van

Rensburg’s testimony aside from Bones’ speculative statements about their

motives for terminating her employment. Such speculation does not suffice to
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create a genuine issue of material fact as to the causal connection between her

potential filing for workers’ compensation and her termination. See Rice , 166

F.3d at 1092; Allen, 119 F.3d at 846.

Even presuming that the medical department knew that Bones had a workrelated injury, the record still does not support a reasonable inference of

retaliatory intent by the decision-makers . No one in the medical department told

van Rensburg or Reniker about Bones’ filed medical leave request until July 30th,

three days after they made the decision to terminate Bones. Likewise, there is no

evidence that either decision-maker knew of Bones’ 1997 request for workers’

compensation papers from nurse Thompson, or of any alleged work-related injury. 

Given this evidence and the medical department’s policy of protecting the privacy

of employee medical information, Bones cannot establish that the decision-makers

were aware or should have been aware of her alleged work-related injury or

potential for filing a workers’ compensation claim.

A reasonable jury cannot infer from the above evidence that the decisionmakers terminated Bones in retaliation for her potential filing of a workers’

compensation claim for her alleged work-related injury. Thus, Bones failed to

establish the causal connection prong of her prima facie state law claim as a

matter of law. The district court therefore correctly granted summary judgment to

Honeywell on Bones’ state law claim.
2The analysis of improper notice under the FMLA is separate from the

analysis of the substantive claim that an employer interfered with the exercise of

an employee’s FMLA rights. See Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298

F.3d 955, 960-61 (10th Cir. 2002) (notice not part of the analysis set out by the

court for determining interference with one’s FMLA rights); Rhoads v. F.D.I.C.,

257 F.3d 373, 384 (4th Cir. 2001) (court assumed employee proffered adequate

(continued...)

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FMLA Claim

Likewise, the district court did not err in concluding that Bones failed to

establish, as a matter of law, an FMLA claim. The FMLA makes it unlawful for

an employer to interfere with, restrain, or deny the exercise of or the attempt to

exercise, any right provided under the Act. 29 U.S.C. § 2615(a).

Bones argues that Honeywell interfered with her FMLA right to take

medical leave by terminating her employment. The district court granted

summary judgment to Honeywell on Bones’ FMLA claim because it concluded

that: (1) Bones failed to give proper notice to Honeywell under the FMLA; or (2)

alternatively, Honeywell met its burden of proving that Bones would have been

dismissed regardless of her request for an FMLA leave, because she failed to

comply with Honeywell’s policy which required her to notify her supervisor of

her absences.

Bones only appeals the grant of summary judgment on the first ground. 

Thus, she waived her right to appeal the alternate ground upon which the district

court based its summary judgment on her FMLA claim. 2

 Therefore, this court
2

(...continued)

notice to invoke FMLA protection, then proceeded to analyze substantive FMLA

interference claim). Unlike the Tenth Circuit, the Sixth Circuit has explicitly

made notice part of its test for interference with FMLA rights. See Cavin v.

Honda of Am. Mfg., Inc., 346 F.3d 713, 719-722 (6th Cir. 2003). Bones never

argues that this court should abandon its own precedent and adopt the Sixth

Circuit’s approach. Because this circuit’s precedents do not include notice as part

of the interference analysis, this court declines to follow the Sixth Circuit’s

approach. See Diffee Ford-Lincoln-Mercury, 298 F.3d at 960-61. Therefore,

Bones’ appeal of the notice issue does not cure her waiver of her right to appeal

the substantive ground upon which the district court disposed of her FMLA claim.

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need not address the notice issue because, even if Bones were to prevail on that

issue, the grant of summary judgment to Honeywell would still stand on the

alternative ground which was not appealed.

Even if Bones had not waived her appeal of the alternate ground, however,

she would still not prevail on appeal because her substantive interference claim

under the FMLA fails as a matter of law. Under the interference theory, if an

employer interferes with an employee’s FMLA-created right to a medical leave, it

has violated the FMLA regardless of its intent. See Smith v. Diffee Ford-LincolnMercury, Inc. , 298 F.3d 955, 960 (10th Cir. 2002). In such a case, the employee

must demonstrate her entitlement to the disputed leave. Id. The intent of the

employer is immaterial. Id. If dismissal would have occurred regardless of the

request for an FMLA leave, however, an employee may be dismissed even if

dismissal prevents her exercise of her right to an FMLA leave. Id. For the
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purposes of this analysis, this court assumes that Bones has established her

entitlement to an FMLA leave.

Bones’ interference claim fails because Honeywell successfully established

that Bones would have been dismissed regardless of her request for an FMLA

leave. A reason for dismissal that is unrelated to a request for an FMLA leave

will not support recovery under an interference theory. Diffee Ford-LincolnMercury , 298 F.3d at 961 (an indirect causal link between dismissal and an

FMLA leave is an inadequate basis for recovery); Gunnell v. Utah Valley State

Coll. , 152 F.3d 1253, 1262 (10th Cir. 1998) (to withstand summary judgment on

an interference theory, an employee’s termination must have been related to her

request for an FMLA leave). Reniker specifically testified that he dismissed

Bones because of her failure to comply with Honeywell’s absence policy, and

would have terminated her regardless of her request for a medical leave. Bones

proffers no evidence, aside from her own speculations, that contradicts Reniker’s

testimony. The record shows that Bones had a history of tardiness and noncompliance with Honeywell’s absence policy. Bones had previously been given

warnings that her failure to notify her supervisor of her absences would lead to

her termination. Reniker had terminated her on a prior occasion because he had

thought that she failed to notify him of her absences. 
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Furthermore, it is uncontroverted that Bones did not comply with

Honeywell’s absence policy on the dates for which she was terminated. Bones

admits that she never notified Reniker about her absences. Bones was terminated

because she did not comply with Honeywell’s absence policy; she would have

been terminated for doing so irrespective of whether or not these absences were

related to a requested medical leave. See McBride v. CITGO Petroleum Corp. ,

281 F.3d 1099, 1108 (10th Cir. 2002) (no interference if the employee would have

been terminated in the absence of the FMLA request or leave). Bones’ request for

an FMLA leave does not shelter her from the obligation, which is the same as that

of any other Honeywell employee, to comply with Honeywell’s employment

policies, including its absence policy. See Diffee Ford-Lincoln-Mercury , 298

F.3d at 960 (an employee who requests an FMLA leave has no greater rights than

an employee who does not request such a leave). 

No reasonable juror could deduce from the above evidence that Bones’

termination was related to her request for an FMLA leave. The district court

therefore correctly granted summary judgment to Honeywell on Bones’ FMLA

claim. 

ADA Claim

The district court did not err in concluding, as a matter of law, that Bones

failed to establish an ADA claim. To qualify for relief under the ADA, a plaintiff
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must establish that: (1) she is a disabled person within the meaning of the ADA;

(2) she is qualified to perform the essential functions of the job, with or without

accommodation; and (3) the employer terminated her employment under

circumstances which give rise to an inference that the termination was based on

her disability. See Morgan v. Hilti, 108 F.3d 1319, 1323 (10th Cir. 1997).

Even assuming, arguendo , that Bones can prove the other elements of a

prima facie claim, Bones’ ADA claim fails as a matter of law because she did not

establish that her termination was based on her alleged disability. To establish

such a causal connection, Bones must provide some evidence that her disability

was a determining factor in Honeywell’s decision to terminate her. Hilti, 108

F.3d at 1323. An employee cannot state a cause of action for disability

discrimination when her employer terminated her for reasons unrelated to a

disability. Foster v. Arthur Andersen, LLP , 168 F.3d 1029, 1033 (7th Cir. 1999). 

Bones failed to prove that her alleged elbow disability drove Reniker and

van Rensburg’s decision to terminate her employment. The evidence shows that

Reniker was aware of Bones’ arm restrictions since the fall of 1998, over ten

months prior to her termination. Ten months is too long a time lapse, standing

alone, to support an inference of a causal connection between Bones’ alleged

disability and her termination. See Anderson v. Coors Brewing Co. , 181 F.3d
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1171, 1179 (10th Cir. 1999) (a temporal proximity of three months, standing

alone, is too attenuated to support an inference of a causal connection).

Moreover, Bones has failed to introduce other evidence that could support

an inference of causal connection. The record shows that Bones was granted at

least three elbow-related medical leaves by Honeywell, and her elbow restrictions

were repeatedly accommodated by both Reniker and McFadden. Reniker

complied with Bones’ elbow restrictions and Steelman’s recommended

modifications of tasks as far back as 1998. Such accommodating behavior and

lack of temporal proximity between Bones’ termination and Reniker’s first

awareness of her elbow restrictions do not support an inference of discrimination

on the basis of her alleged disability.

Furthermore, no evidence, aside from Bones’ speculation, suggests that

Reniker or van Rensburg even knew that the absences for which they terminated

Bones were due to her alleged disability, or that she had requested

accommodation, i.e. , her request for a medical leave. The record shows that

Bones had absenteeism problems for years, and had received warnings that her

excessive number of unexcused absences could lead to termination. Reniker

testified that he could not have known if a particular unexcused absence was

caused by a medical condition unless he had been so informed. Bones’ bare
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testimony, speculating that she was fired because of her alleged elbow disability,

does not suffice to create a genuine issue of material fact as to causal connection. 

No juror could reasonably infer a causal connection between Bones’

termination and her alleged disability from the above evidentiary basis. Thus,

there is no genuine issue of material fact as to whether Bones was terminated

because of her alleged disability. The district court correctly granted summary

judgment to Honeywell on Bones’ ADA claim.

IV. CONCLUSION

For the foregoing reasons, this court affirms the district court’s grant of

summary judgment to Honeywell.