UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

ARTHUR FRYER, Petitioner - Appellant,

v. COIL TUBING SERVICES, LLC., Respondent - Appellee. No. 09-8105 (D. Wyo.) (D.C. No. 2:09- CV-00004-WFD)

ORDER AND JUDGMENT *

Before HARTZ , O'BRIEN , and TYMKOVICH , Circuit Judges.
Arthur Fryer appeals from a summary judgme nt entered in favor of his employer, Coil Tubing Services (CTS). After workin g for CTS less than two months, Fryer was

* This order and judgment is an unpublishe d decision, not binding precedent. 10th Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1. It is appropriate as it relates to law of th e case, issue preclusion and claim preclusion. Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). Citation to an order and judgment must be accompanied by an appropriate parenthetical notation

B (unpublished). Id

. FILED United States Court of Appeals Tenth Circuit 

### February 9, 2011
Elisabeth A. Shumaker Clerk of Court- 2 - diagnosed with Hepatitis C. 1 Four months later, he informed CTS his condition had worsened. Fryer was put on leave with full pay and benef its for approximately three months. Less than three weeks after returni ng to work, Fryer injured his back while at home and went on short-term disability pay for three months . When he attempted to return to work and wa s told CTS had no light-duty work meeting his doctor’s restriction, Fryer sued under the Americans with Disa bilities Act (ADA) claiming CTS considered him disabled and believed his presence at work was a liability to the company. He also claimed CTS retaliated against him and he wa s constructively discharged. The district court concluded Fryer failed to raise a genuine issue of material fact as to any issue because he failed to demonstr ate CTS considered him disabl ed or took any adverse action against him. We affirm.
I. FACTUAL BACKGROUND CTS hired Fryer in late No vember 2006, as a Service Tech II (ST II) in its Rock Springs, Wyoming, office. An ST II is res ponsible for driving semi-trucks; the drivers are regulated by the Department of Transp ortation (DOT) because the trucks regularly transport hazardous material to the field. In January 2007, Fryer was diagnosed with Hepatitis C. He told his District Manager, Oscar Molbert, and several other supervisors about his diagnosis, but con tinued to work for CTS without incident until April 2007.

1 “Hepatitis C is a contagious liver dis ease that ranges in se verity from a mild illness lasting a few weeks to a serious, lifelong illness that attacks th e liver. It results from infection with the Hepa titis C virus (HCV), which is spread primarily through contact with the blood of an in fected person . . . . [It] is not spread by sharing eating utensils, breastfeeding, hugging, kissing, holding hands, coughing, or sneezing. It is also not spread through food or water.” See http://www.cdc.gov/hepatitis/C/cFAQ.ht m (last visited January 14, 2011).- 3 - On April 16, 2007, after havi ng undergone a liver biopsy in the normal course of treatment, Fryer discovered his disease had progressed to chronic Hepatitis C, Stage III (out of IV stages), Type IB. At the re quest of Fryer and his wife, Dawn, nurse practitioner Deborah Cobb wr ote a letter explaining: Arthur . . . is suffering from chroni c Hepatitis C with moderate liver damage at this time. He has reporte d that he is sleeping poorly, loosing [sic] weight as he has had no appetite since finding out that he has chronic Hepatitis C. He also reports increased fatigue. We do not have plans to begin any treatm ent for Arthur a[t] this time as he needs a mental health assessment and clearance prior to any consideration for treatment as side effects of treatments can be significant. He has requested that I write this lette r so that he may inform his employers of his disease. He does not curren tly have any debility from his chronic Hepatitis C except fatigue which shou ld not preclude his working. (R. Vol. IV at 691.) The same day, Frye r and Dawn provided the letter to Fryer’s immediate supervisor, Operatio ns Manager Robert Gibbs. They informed Gibbs that Fryer was experiencing fatigue and depressi on and the treatment’s side effects could include suicidal thoughts. 2 Dawn told Gibbs the treatment, once started, would last fortyeight weeks. On April 23, 2007, Fryer met with Molbert and Tiffany Letchworth, the Human Resources Manager at CTS’s office in Louisian a, who participated by telephone. During their discussion, Fryer expressed concerns about his job and stat ed he felt tired and depressed. He also told them he would be under an intense forty-three week treatment

2 Cobb also wrote a second letter on April 16, 200 7, stating “a significant adverse effect of this treatment may lead to increased depression w ith possible suicidal and homicidal ideation . . . .” (R. Vol. IV at 665.) It is unclear if this letter also was provided to Gibbs during this meeting or whether this information was orally provided.- 4 - plan with a side effect of suicidal thoughts. Later that day, Letchworth e-mailed Molbert and David Hebert, Vice-Presiden t of Operations, stating: In following up to our conversation this morning, it is my recommendation to send Arthur home, with pay, allo wing him time to obtain the medical documentation (release) requested of hi m. I am attaching a functional job description for him to prov ide to his doctor for review and consideration. In addition, as I communicated, I am ignorant to this disease; however, take his word that it is transmitted through blood . With that information alone, I feel it is in the best interest [of] our personnel to remove Arthur f[ro]m a work environmen t at this time. Should management feel differently, please let me know. Th is is simply my recommendation. (R. Vol. IV at 673 (emphasis added).) Two days later, on April 25, Gibbs called Fryer into the office. According to Fryer, Gibbs also had the office assistant, Me linda Mortensen, come in. Gibbs then said, “I don’t want to be the one to do this, but higher powers le ft it up to me to do it. They want you to go home, get a phys ical according to your job de scription, before you come back to work.” (R. Vo l. I at 76.) Mortensen left the room and Gibbs “sat down in front of [Fryer] and he said, ‘What if you cut yours elf and blood splatters in someone’s face or eyes? They can catch what you have.’” 3 ( Id .) Mortensen returned and Fryer, still in Gibbs’ office, s poke with Letchworth on the telephone. He asked if he was being fired. Letchworth told him no, but pursuant to company policy, after six months of inactiv e duty his employment would be terminated

3 Gibbs denies making this statement. Bu t Dawn Fryer testified she spoke with Gibbs the same day her husband was sent home. Gibbs told her Fryer was “a risk to the employees and a liability to the company.” (R. Vol. II at 343.) One of Fryer’s coemployees testified that Gibbs and Molber t discussed Fryer’s condition with several workers and told them Fryer was “too much of a liability to have [t]here.” ( Id . at 290.)- 5 - and he would be offe red COBRA benefits. 4 Letchworth agreed to send Fryer’s paperwork for short-term disab ility directly to his liver sp ecialist and he was provided a functional job description for his primary physician’s use in his medical examination. Fryer went home conditioned on him getting a physical examination and release. He received full pay and benefits until he returned to work on Ju ly 30, 2007, and this period of paid leave was not counted as inactive duty. On May 4, 2007, nine days after Fryer was sent home, Letchworth fulfilled her promise to send the short-term disability packet to Fryer’s liver spec ialist, Dr. Cole. She also used that time to educate herself on the na ture of Hepatitis C. She spoke with Kathy, a staff nurse at Dr. Cole’s office, who sent a facsimile transmission containing information regarding the transmission of Hepatitis C. In an e-mail dated May 18, 2007, to D ouglas Frankhouser, the head of human resources for CTS’s parent company, Houst on Frazier, CTS’s executive vice-president and General Manager, and others , Letchworth reported, “[m] y concern is [Fryer’s] open disclosure of being fatigued and depressed and allowing him to perform safety sensitive work (driving tractor trailer trucks) . . . . In [the nurse’s] opinion, Ar tie is currently fit for work with this condition. However, as she stressed, hi s depression and tiredness is another issue; one in which he is not under D r. Coles [sic] care for.” (R. Vol. IV at 737.)

4 COBRA is an acronym for the Consolidat ed Omnibus Budget Reconciliation Act, 29 U.S.C. §§ 1161-68, which “au thorizes a qualified benefici ary of an employer’s group health insurance plan to maintain coverage when she might otherwise lose coverage upon the occurrence of a ‘q ualifying event.’” Simpson v. T.D. Williamson Inc. , 414 F.3d 1203, 1204 (10th Cir. 2005).- 6 - She also informed him she ha d received the pamphlet w ith information on Hepatitis C and stated Fryer was scheduled to undergo a psychiatric evaluation on June 6, 2007, a necessary pre-requisite to treatment. She reiterated the continuing concern about Fryer’s depression and fatigue and asked for input. 5 Frazier responded that Fryer should continue on paid leave due to concerns rega rding the level of his depression. On May 21, 2007, a statement signed by physician assistant Amy Olson and Dr. Kurt Hunter of the Hunter Family Medical Clinic was sent to CTS. It stated: Mr. Fryer is currently a patient at Hu nter Family Medical Clinic who asked me to evaluate his medical status in rela tionship to his job description. It is my professional opinion at this time, given Mr. Fryer’s current health conditions, that he is capable of completing all task s listed in your employee General Job Description. If y ou have any questions , or desire to discuss this matter further please feel free to contact me at the above listed phone number. (R. Vol. IV at 670.) Letchworth’s notes indica te she made several at tempts to discuss the communication further, leaving messages to speak to Olson or Hunter on May 29 and June 1, 2007. Her notes also reflect she left a message for Fryer to return her call on June 14, 2007. On June 22, 2007, Letchworth te lephoned again and spok e with Dawn Fryer. Letchworth asked whether Fryer was mentally re ady to return to work . Dawn states she told Letchworth: “[O]f course he was mentally capable of doing his job and when are you going to put him back to work.” (R. Vol. II at 344.) Letchworth’s notes reflect Dawn said Fryer was seeing a mental health profe ssional and was mentally capable of starting treatment but it was unknown when the Hepatitis treatment would begi n. Fryer, however,

5 In a May 7, 2007 e-mail, Letchworth no ted Fryer had used a ll his vacation and, due to his short tenure with th e company, was not eligible fo r sick leave or federal leave under the Family Medical Leave Act.- 7 - testified he followed through with a mental health care provider but was not cleared for treatment in June 2007. Fryer and Dawn clai m the couple heard nothing more from CTS. But, for his part, Fryer conceded he never inquired about his wo rk status when he retrieved his check at the CTS office each week. Although the date is not certain from the record, at some point Letchworth spoke with Amy Olson on the telepho ne. Letchworth discovered Olson had conducted the May 21, 2007 medical examination. Letchworth asked whether Fryer had disclosed his fatigue and depression at the time of th e examination. Olson stated she would review the file and get back to Letchworth. On July 19, Letchworth received a return call from Dr. Hunter stating he was going to conduct a second examination. During the same time-frame, Dawn Frye r’s affidavit states she telephoned Frankhouser. She complain ed her husband had submitted a letter from his physician clearing him for duty but CTS s till refused to allow him to re turn to work. Within one hour of her call, the Fryers received a tele phone call from Dr. Hunte r’s office setting an appointment for another examinat ion. Also during the same time period, Fryer filed an ADA charge of discrimination with the Equal Opportunity Employment Commission (EEOC) office in Denver against CTS. The claim was forwar ded to the Wyoming Department of Employment’s Fair Employment Program, 6 which is designated to receive both federal and state employment complaints. 7 See Wyo. Stat. Ann. § 27-9-104(a)(iii).

6 CTS received the claim sometime in mid-August. See discussion infra at 18.
7 Before a plaintiff may file suit under the AD A, he must exhaust his administrative remedies by filing a charge with the EEOC. See McKenzie v. City & Cnty of Denver , 414- 8 - Fryer was examined by Dr. Hunter on July 24, 2007. Followi ng the examination, Hunter telephoned Letchworth and reported “that [Fryer’s] de pression is controlled at this time. In addition, it was comm unicated to [Fryer] that he is not to take impairment[-] causing medication while working, to which he is able to accommodate. In addition, [Fryer’s] [H]epatitis C is controll ed at this time and poses no significant risk to others.” (R. Vol. IV at 692.) The next day Letchworth informed Molbert that Fryer could return to work. Fryer reported for work on July 30, 2007. 8 He testified that upon his return, he was not assigned to the field with his crew but, instead, worked in the shop. He “felt [he] was being isolated” and his co-workers “acted as if [he] was contagious.” (R. Vol. II at 316.) He also felt “as if [h e] was being watched more clos ely by [his] supervisors.” ( Id .) Sometime during the weekend of August 16- 18, 2007, Fryer injured his back at home and went on sh ort-term disability. 9 On November 7, 2007, he received a release to return to work on Nove mber 12, but the release limited his lifting activities such that it required a light-duty assignment – well belo w the lifting requirements of the CTSII position. When he reporte d for work on the 12th, Molbert and Molbert’s new F.3d 1266, 1274 (10 th Cir. 2005).A plaintiff in a state in which a state agency has the authority to investigate employment discrimi nation claims, must file with the state agency. 42 U.S.C. § 2000e-5(c); 29 C.F. R. § 1601.3.The Wyom ing Fair Employment Program has such authority. See Wyo. Stat. § 27-9-104(a)(iii).
8 When Fryer returned, he began recording conversations with his co-workers and supervisors.
9 CTS offered short-term disability benefits for em ployees who had completed thirty days of service and c ould not work due to a personal accident. The benefits paid 60% of the employee’s wages up to $500. 00 per week. Fryer received the maximum $500.00 per week.- 9 - replacement, Russ Robison, 10 met with Fryer and told him there was no light duty available. When Fryer told them “the disa bility company [was] a pa in in the ass,” they advised him to talk with Letchworth to reso lve any problems he had with the short-term liability provider. (R. Vol. II at 334.) On November 13, the short-term disability provider wrote to Fryer and based upon “updated information from [his] doctor,” informed Fryer it would pay benefits up to November 19, but he must provide medical documentation that he was par tially or totally disabled fo r the benefits to continue. 11 (R. Vol. IV at 708.) Fryer delivered another medical work re lease to CTS dated November 21, 2007, which released him for “regular duty” be ginning November 26, but it contained lifting restrictions identical to those in the first release, effectively limiting him to light duty work. Robison again told him he needed to bring a restriction-free release before he could return to work becau se there were no available light-duty assignments. On November 26, Letchworth sent a facsimile transmission to Fryer’s doctor asking him to reevaluate Fryer’s release to “regular” duty because Fryer was “still unable to fulfill his essential[] job duties due to the lifting restrictions . . . .” (R. Vol. IV at 697.) Fryer submitted his resignation to Robison on November 27, 2007. He testified he could not afford to stay with CTS without being paid and he felt his relationship with

10 CTS hired Robison to re place Molbert in Octobe r 2007. Molbert spent approximately one month acclimating Robison to the position before returning to CTS’s Louisiana office.
11 It appears the medical providers sent a co py of the release directly to the shortterm benefits providers.- 10 - CTS was deteriorating. Two days later, on November 29, 20 07, the short-term disability provider sent Fryer a letter denying an extensi on of his benefits based on the latest work release. Fryer was told, however, additiona l benefits would be considered if Fryer provided medical documentation supporting “c ontinued restrictions and limitations from [his] occupation.” ( Id . at 695.)
II. PROCEDURAL BACKGROUND Fryer filed an ADA claim against CTS claiming discrimination, retaliation and constructive discharge. 12 CTS moved for summary judgment. The district court decided summary judgment was appropriate for severa l reasons. First, Fryer was not a qualified individual with a disability under the ADA beca use he failed to present evidence that he was actually disabled or that CTS considered him disabled. In addition, even if he had shown CTS considered him disabled, it di d not discriminate by taking an adverse employment action against him; a temporary leave with full pay and benefits was a reasonable accommodation while CT S determined if he could perform his duties. The court dismissed Fryer’s retaliation claim be cause he failed to demonstrate any adverse action by CTS following his discrimination claim. Finally, it determined Fryer’s constructive discharge claim failed because he had not shown the conditions of employment left him with no choice but to quit.
III. DISCUSSION “We review the grant of summary judgmen t de novo, taking the facts and the

12 Fryer also brought an ERISA clai m on which CTS was granted summary judgment. Fryer did not appeal from that decision.- 11 - reasonable inferences to be drawn from th em in the light most favorable to the nonmoving party.” Trainor v. Apollo Me tal Specialties, Inc. , 318 F.3d 976, 979 (10th Cir. 2002). Applying the same legal standard as the district court, we will affirm summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Bowling v. Rector , 584 F.3d 956, 963 (10th Cir. 2009). The movant “bears the initial burden of presen ting evidence to show the ab sence of a genuine issue of material fact;” if this burden is met, it then becomes the responsibility of “the nonmoving party to set forth specific facts s howing there is a genuin e issue for trial.”
Trainor , 318 F.3d at 979. “Where the record ta ken as a whole could not lead a rational trier of fact to find for the non-moving pa rty, there is no genuin e issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp ., 475 U.S. 574, 587 (1986) (quotations omitted).
A. ADA Violation The ADA prohibits certain employers fro m discriminating against individuals because of their disabilities. See 42 U.S.C. § 12112(a). A prima facie case of ADA discriminati on consists of three elements: the plaintiff (1) is a disabled person as defined by the ADA; (2) is qualified, with or without reason able accommodation, to perform the essential functions of the job held or desired; and (3) suffered discrimination by an employer or prospective employe r because of that disability. Justice v. Crown Cork & Seal Co., Inc. , 527 F.3d 1080, 1086 (10th Cir. 2008). “Disability” is defined as follows: The term “disability” means, with respect to an individual -- 12 - (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 an impairment; or (C) being regarded as having such an impairment . . . . 42 U.S.C. § 12102(2)).
B. Regarded As Disabled Fryer does not claim he was actually disa bled. Instead, he contends he is a qualified individual under the ADA because CT S regarded him as disabled. Fryer can establish his “regarded as” claim in either of two ways: (1) a covered entity mistakenly be lieves that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes th at an actual, nonlimiting impairment substantially limits one or more major life activities. In both cases, it is necessary that a covered entity en tertain misperceptions about the individual . . . . Sutton v. United Air Lines, Inc. , 527 U.S. 471, 489 (1999). 13 Fryer argues CTS regarded him as disa bled in the life act ivity of working 14 because

13 In Sutton , the Supreme Court held “the determin ation of whether an individual is disabled should be made with reference to measures that mitigate the individual’s impairment . . . .” 527 U.S. at 475. The ADA Amendments Act of 2008 (“ADAAA”) rejected consideration of m itigating measures. ADAAA, § (4(a) (now codified at 42 U.S.C. §12102(4)(E). Bu t, because Fryer’s claim occurre d in 2007, the ADAAA does not apply. See Hennagir v. Utah Dep’t of Corr. , 587 F.3d 1255, 1262 n.2 (10th Cir. 2009). In any event, mitigation of Fryer’s im pairment is not at issue here.
14 Working is a “major life activity.” 42 U.S.C. §12102(2); 29 C.F.R. § 1630.2(i); see also EEOC v. Heartway Corp. , 466 F.3d 1156, 1162 (10th Cir.2006). The employee must be: significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classe s as compared to the average person having comparable training, skills and abilities. The inab ility to perform a single, particular job does not constitute a substantial limitation in the major- 13 - it considered his Hepatitis C to make him a da nger to others. He points to Gibbs’ remark (when telling him to go home) about the danger he presente d to co-workers, the content of Letchworth’s April 2007 e-mail, the di sclosure to his cowo rkers regarding the possibility of contamination, hi s treatment when he returned to work in Ju ly and CTS’s refusal to give him light-duty wo rk when he attempted to retu rn in November. He claims these actions demonstrate CTS was “operating out of ignorance,” “motivated by fears and stereotypes” and under the belief Fryer was un safe in any work en vironment, not just driving federally-regulated vehicles as CTS suggests. 15 (Appellant’s Br. at 16.) Fryer also contends CTS’s explanation fo r sending him home – his depression and fatigue – is pretext. He points to CTS’s fa ilure to specifically me ntion these symptoms, to either he or his doctors, as the reason he needed medical assessment. He claims CTS offers no explanation why it di d not request a mental examination if, in fact, those concerns were genuine. In addition, despite the work re lease from the Hunter Family Medical Clinic on May 21, 2007, CTS failed to call him back to wo rk until Dawn Fryer called the parent company and complained. The district court rejected the pretext argum ent. Given Fryer’s self-disclosures in April 2007 regarding his fatigue , depression and the progression of his disease, the court

life activity of working. Heartway Corp. , 466 F.3d at 1162. 15 In the alternative, Fryer claims even if CTS’s misperception was limited to only his ability to drive a federally-regulated truc k, the company still regarded him as unable to perform any class of jobs for which a commercial driver’s license (CDL) was a condition of employment – a condition common to oilfie ld work.- 14 - concluded CTS’s c oncern about Fryer’s ability to safely drive semi-truck s with hazardous material and its request that he obtain medi cal clearance were reasonable. Rather than evidence of a misperception of his condition, it demonstrat ed CTS had arrived at no conclusion as to the actual nature of his co ndition. In addition, Fryer received full pay and benefits while CTS resear ched its concerns and he wa s immediately scheduled for work when CTS received a satisfact ory clearance from his doctor. We agree. Gibbs’ remarks on the day Fryer was sent home may have shown a misperception regarding the transmission of Hepatitis C and Letchworth clearly admitted she was “ignorant to this disease.” (R. Vol. IV at 673.) But the ADA does not require an employer to unwittingly risk the safety of its employees or the pub lic. Being temporarily uncertain of a situation is not the same as considering an employee disabled. “Employers need to be able to use r easonable means to ascertain th e cause of troubling behavior without exposing themselves to ADA claims . . . ” Lanmam v. Johnson Cnty, Kan ., 393 F.3d 1151, 1157 (10 th Cir. 2004) (quotations omitted). It was not unreasonable for CTS, given Fryer’s disclosure, to give him an opportunity to estab lish his ability to safely work in the environment and to pr ovide him full pay while it rese arched the situation. Although CTS did not directly address Frye r’s depression and fatigue in its request for a medical examination, that failure does no t establish a factual question as to whether CTS’s explanation for its action was pretext. Fryer fails to acknowledge undisputed facts – concerns about his fatigue an d depression were the subject of CTS internal e-mails as early as May 7, 2007, before he submitted th e work release from Hunter Family Medical Clinic on May 21. Moreover, Letchworth made several unsuccessful calls to the clinic’s- 15 - medical staff to further discuss this releas e. Concerns regardin g Fryer’s mental and physical state were also conveyed in Letchw orth’s telephone call with Dawn Fryer in June. Ultimately, Letchworth’s e-mail to Molbert after Dr. Hunter’s July 2007 examination reflected these exact concerns had been allayed by Fryer’s physician. There is no evidence that CTS hesitated to resche dule Fryer for work once it was assured he could safely return. The district court did not err in concluding CT S did not consider him disabled and, therefore, he was not a qualif ied individual under the ADA. Because Fryer must demonstrate he is a “qualified individual” as an essential element of his ADA claim, and he has not done so, we need no t address the remaining elements. Hennagir , 587 F.3d
at 1261-62. C. Retaliation “To establish a prima facie case of retalia tion, a plaintiff must show: (1) that [he] engaged in protected opposition to discrimi nation, (2) that a reasonable employee would have found the [employer’s] ch allenged action materially adverse, and (3) that a causal connection existed between the protected activ ity and the materially adverse action.” Id

. at 1265 (quotations omitted). The anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an inju ry or harm. . . . [A] plaintiff must show that a reasonable employee woul d have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination. Burlington N. & Sant a Fe Ry. Co. v. White , 548 U.S. 53, 67-68 (2006) (quotations omitted).- 16 - While acknowledging that Fryer’s filing an ADA claim met the first element of his prima facie case, the district court concluded he failed to demonstrate the second two elements – an adverse action caus ally connected to the activity. Fryer contends CTS retaliated when it refused to provide him a light-duty assignment in November after his temporary disability benef its came to an end. He argues it is uncontested that dr ivers routinely work ed in the shop wh en field work was unavailable. He points to the fact he was a ssigned to work in the shop prior to his paid leave in April (when he had no lifting restrict ions) and when he retu rned in July (again, he had no lifting restrictions). He argues the shop work could have been manipulated to meet the lifting restrictions re quired by his work release a nd, in the past, other injured employees were given light-duty work in the shop. In the district court, Fryer pointed to two CTS employees’ affidavits as evidence that other injured employees were allowed to work in the shop. He also cited to Mortensen’s deposition testimony as allegedly supporting CT S’s policy to provide lightduty work to employees with lifting restrictio ns. The district court determined Fryer’s evidence was insuffi cient to avoid summary ju dgment. We agree. See Tinkle v. Okla. Gas & Elec. Co. , 16 Fed. Appx. 815 (10th Cir. 2001 ) (unpublished) (prima facie case fails when no evidence of specific light-duty work). 16 Neither employee’s affidavit attested to a company policy which provided light-

16 Unpublished opinions are not binding prece dent. 10th Cir. R. App. P. 32.1(A). We mention Tinkle as we would an opinion from anot her circuit, persuasive because of its reasoned analysis.- 17 - duty assignments for off-duty injuries at the time Fryer requested his light-duty assignment. Mortensen clarified she belie ved the company only gave light duty assignments if the injury was work-related – unlike Fryer’s situation. Moreover, no witness identified a particular opening in the shop at the time of Fryer’s request. Fryer also failed to establish a causal connection between CTS’s allegedly adverse actions – the failure to employ him on a light-duty status and hi s isolation upon his return to work – and his char ge of discrimination. 17 The exact date CTS learned of Fryer’s discrimination charge is unclear. Fryer claims he filed his charge on July 24, 2007. However, the charge itself represents it was received at the Equal Employment Opportunity Commission office in Denver on July 23, 2007, and then received by the Wyoming Fair Employment Program office on August 15, 2007. Letchworth testified she first became aware of the charge “[i]n th e middle of August.” (R. Vol. III at 579.) There is no other evidence in the record regarding the date CTS became aware of Fryer’s claims. The record shows Fryer last worked on August 15th, 2007; his injury occurred sometime between the 16th and the 18th. Thus , the alleged adverse treatment in August occurred prior to the time CTS knew of his ch arge. And clearly CTS’s actions following August 15, 2007 – the provision of short-term disability benefits to an injured employee – belies an intent to dissuade “a reasonable wo rker from making or supporting a charge of

17 Fryer relies exclusively on “the proxim ity in time from the receipt of the discrimination charge, the hostility and isolation Mr. Fryer expe rienced upon his return to work [on July 30, 2007], and the pretextual nature of [the ] proffered non-discriminatory reason for the employment action.” (Appellant’s Br. at 37-38.)- 18 - discrimination.” White , 548 U.S. at 68. Almost three months passed between Augu st 15 and Fryer’s release to work on November 12, 2007. “[U]nless 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.” Anderson v. Coors Brewing Co. , 181 F.3d 1171, 1179 (10th Cir. 1999). A three-month gap, standing alone, between the filing of his claim and the challenged employment action does not permit an inference of causation. Id .; see also Richmond v. ONEOK, Inc. , 120 F.3d 205, 209 (10th Cir. 1997) (concluding threemonth gap between protected activity and term ination was not close enough to establish causation in light of all the facts). Because Fryer presents no other evidence of causation or a materially adverse action, he fails to pr esent a material issue of fact on this element of his claim.
D. Constructive Discharge “The plaintiff’s burden in a constructive di scharge case is substantial . . . .” EEOC v. PVNF, L.L.C. , 487 F.3d 790, 805 (10th Cir. 2007). Constructive discharge occurs when the employer by its illegal discriminatory acts has made work ing conditions so difficult that a reasonable person in the employee's position would feel compelled to resign. Essentially, a plaintiff must show that she had no other choice but to quit. The conditions of employment must be objectively intolerable; the plaintiff’s subjective views of the situation are irrelevant. Sanchez v. Denver Pub. Sch., 164 F.3d 527, 534 (10th Cir. 1998) (citations and quotations omitted), see also Narotzky v. Natrona Cnty. Mem’l Hosp. Bd. Of Trs., 610 F.3d 558, 565 (10th Cir. 2010) (under an ob jective test, “neither [the employee’s]- 19 - subjective views of the situation, nor [the em ployer’s] subjective intent are relevant”). “In contrast, a plaintiff who voluntarily resigns cannot claim that he or she was constructively discharged.” Exum v. U.S. Olympic Comm. , 389 F.3d 1130, 1135 (10th Cir.2004). Fryer claims the loss of his short-term di sability income and the denial of lightduty work made it impossible for him to con tinue working for CTS on unpaid leave. After a thorough review of the facts in the li ght most favorable to Fryer, the district court concluded: Under the instant facts, the Court cann ot find that Fryer was constructively discharged. First, Fryer offers no factua l circumstances that rise to the level that a reasonable person would find intolerable. Second, the Court is skeptical that Fryer was left with no a lternative but to resign, particularly since he admits that he never inquired into other alternatives. Accordingly, Fryer has not shown a genuine issue of material fact exists as to his constructive discharge claim. (R. Vol. IV at 769.) Relying on essentially the sa me facts as those used to support his discrimination and retaliation claims, Fryer argues he reached “the moment when [he] realized that he would not be permitted to return to work if the company c ould find any way to keep him from it, and that he would not be making any income while he continued to try.” (Appellant’s Br. at 40.) But because Fryer’s “f acts fail to meet the threshold required for a retaliation claim – a material adverse harm – it follows that t hose same facts cannot satisfy the higher threshold required for a constructive discharge claim.” Johnson , 594 F.3d at 1217 n.6. Although Fryer ma y have subjectively be lieved he correctly ascertained CTS’s intent, the test is an objec tive inquiry. Fryer pr esented no objective- 20 - evidence showing his work conditions were intolerable or that CTS would not assign work once he was able to re turn with a full release. AFFIRMED. Entered by the Court: Terrence L. O’Brien United States Circuit Judge