UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

___________________________________ 

SCOTT WEHRLEY, 

Plaintiff-Appellant, 

v. No. 12-1079 

AMERICAN FAMILY MUTUAL 

INSURANCE COMPANY, 

Defendant-Appellee. 

(D.C. No. 1:10-CV-01567-PAB-BNB) 

(D. Colo.) 

___________________________________ 

ORDER AND JUDGMENT*

____________________________________ 

Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges. 

____________________________________ 

 Plaintiff Scott Wehrley worked as a field claim adjuster for Defendant American 

Family Mutual Insurance Company. While investigating a roof claim in 2007, he fell 

from a ladder and injured his knee and back. He quickly returned to work, where 

Defendant allowed him to stay off ladders. Although a doctor removed all work 

restrictions six months after the fall, Plaintiff challenged this determination and obtained 

medical restrictions from roof-related claims. Defendant accommodated these 

restrictions for a time, but finally told Plaintiff his job would be in jeopardy if he could 

not return to roof claims. Defendant then terminated Plaintiff’s employment, more than a 

 *

 This order and judgment is not binding precedent except under the doctrines 

of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its 

persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED 

United States Court of Appeals 

Tenth Circuit 

January 3, 2013

Elisabeth A. Shumaker 

Clerk of Court
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year after the initial accident. Plaintiff filed this suit, raising several federal and state-law 

claims. The district court granted Defendant summary judgment. Plaintiff appealed. 

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm. 

I. 

Plaintiff began working for Defendant in 1999, and took a position as a property 

claim field senior adjuster in 2006. His duties in that position included, among other 

things, on-site property inspections. The position’s job description said the job required 

“the ability to work in high, precarious places between 1 and 33% of the time,” “the 

ability to climb or balance between 1 and 33% of the time,” and “the ability to stoop, 

kneel, crouch or crawl between 1 and 33% of the time.” Appellant’s App., vol. I at 97–

98. It went on: “The information in this job description is intended to describe the 

essential job functions required of those assigned to this job.” Id. at 98. In the unit in 

which Plaintiff worked, about fifty-seven percent of claims were roof-related claims. Id., 

vol. IV at 418. 

In June 2007, Plaintiff fell from a ladder while inspecting a roof and injured his 

knee and lower back. He filed a workers’ compensation claim, and his supervisor, Jeff 

Bourcy, assigned him to desk work until he could walk. After Plaintiff was off crutches, 

Bourcy began assigning him to field claims that did not involve roofs or ladders. In 

December 2007, Defendant’s workers’ compensation doctor determined that Plaintiff had 

reached maximum medical improvement and removed all Plaintiff’s work restrictions. 

Plaintiff nevertheless requested an independent medical examination. The doctor who 

conducted this examination in April 2008 concluded Plaintiff should avoid kneeling or 
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crawling when possible, but that some kneeling and crawling would be acceptable. 

Bourcy then reassigned Plaintiff to roof claims, but Plaintiff quickly obtained ladder and 

roof restrictions from the worker’s compensation doctor. In July 2008, that doctor 

determined Plaintiff needed knee surgery and placed Plaintiff on permanent work 

restrictions. 

On July 21, 2008, Plaintiff discussed with Bourcy his need for surgery and 

informed him he had surgery scheduled for July 30. Bourcy followed up that 

conversation with an email referring Plaintiff to Defendant’s Family and Medical Leave 

Act (FMLA) coordinator “to discuss FMLA possibilities as soon as you can.” Id., vol. II 

at 313. When Defendant’s workers’ compensation insurer, Sentry, declined to cover the 

surgery, Plaintiff postponed the surgery and challenged Sentry’s denial of coverage. 

Bourcy advised Plaintiff to have his personal insurer cover the surgery. Bourcy asked on 

August 6, 2008, whether Plaintiff had filed for FMLA leave. Plaintiff said he planned to 

apply for FMLA once the surgery was scheduled, but that he was waiting to hear back 

from his insurance company. Bourcy told Plaintiff this course of action was reasonable. 

On August 22, 2008, Bourcy told Plaintiff that if he did not perform roof claims, 

his job could be in jeopardy. Bourcy said climbing roofs was an important part of the job 

and Plaintiff’s failure to perform roof claims increased the work for other adjusters. On 

August 28, 2008, Bourcy again asked Plaintiff if he had received a response from his 

personal insurance company or if he had applied for FMLA leave. Plaintiff responded no 

to both questions. Bourcy then terminated Plaintiff’s employment, citing his inability to 

perform roof inspections. Plaintiff’s termination letter said, “You are not eligible for 
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rehire consideration at American Family Insurance.”1

 Appellant’s App., vol. II at 309. 

Sometime after Plaintiff’s firing, Sentry agreed to cover his surgery. 

Plaintiff filed this suit in state court, and Defendant removed it to federal court. 

The Second Amended Complaint asserted (1) discrimination in violation of the 

Americans with Disabilities Act (ADA), (2) violation of Colorado public policy, (3) 

retaliation under the FMLA, and (4) retaliation under the ADA. On Defendant’s motion, 

the district court granted summary judgment in Defendant’s favor on all four claims. 

Plaintiff now appeals. We review the district court’s grant of summary judgment de 

novo, and view the evidence in the light most favorable to the non-moving party. Robert 

v. Bd. of Cnty. Comm’rs, 691 F.3d 1211, 1216 (10th Cir. 2012). 

II. 

We turn first to Plaintiff’s ADA discrimination claim. The ADA prohibits 

covered employers from discriminating against “a qualified individual on the basis of 

disability.” 42 U.S.C. § 12112(a). ADA discrimination claims follow the familiar 

burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 

To establish a prima facie case of discrimination, Plaintiff must show (1) he was disabled, 

 1

 Defendant claims it was willing to rehire Plaintiff, relying on a printout of its 

electronic separation form. That form has a box checked next to “No” after the question 

“Would you rehire?” Appellant’s App., vol. III at 335. But in the “Comments” window 

below, Bourcy wrote, “I would reccomend [sic] re-hire if it were for inside position, not 

requiring ladder/roof work.” Id. at 336. Because Plaintiff has introduced his termination 

letter, which directly rebuts Defendant’s evidence, Plaintiff has created a factual dispute. 

On appeal from summary judgment, we must resolve all factual disputes in the light most 

favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007). 

Consequently, we must assume Defendant was unwilling to rehire Plaintiff to any other 

position. 
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(2) he was qualified, with or without reasonable accommodation, to perform the essential 

functions of his job, and (3) his employer discriminated against him because of his 

disability. Robert, 691 F.3d at 1216. The district court held Plaintiff failed to show a 

genuine factual dispute as to the first element because the evidence did not support a 

finding that Plaintiff was substantially impaired in any major life activity. We express no 

opinion on this point, because we can affirm on the more straightforward basis that 

Plaintiff has not met the second element of a prima facie case. See Seegmiller v. 

LaVerkin City, 528 F.3d 762, 767 (10th Cir. 2008) (“[W]e may affirm on any basis 

supported by the record, even though not relied on by the district court.”). That is, 

regardless of whether Plaintiff was disabled under the ADA, his claims would still falter 

on summary judgment because he was not able to perform the essential functions of his 

job. 

The Department of Labor regulations define “essential functions” as “the 

fundamental job duties of the employment position,” but not “the marginal functions of 

the position.” 29 C.F.R. § 1630.2(n)(1). Evidence of whether a particular function is 

essential includes, but is not limited to, the following: 

(i) The employer’s judgment as to which functions are essential; (ii) 

Written job descriptions prepared before advertising or interviewing 

applicants for the job; (iii) The amount of time spent on the job performing 

the function; (iv) The consequences of not requiring the incumbent to 

perform the function; (v) The terms of a collective bargaining agreement; 

(vi) The work experience of past incumbents in the job; and/or (vii) The 

current work experience of incumbents in similar jobs. 

§ 1630.2(n)(3). In this case, Plaintiff’s written job description said essential functions of 

the job included the ability to work in high, precarious places up to 33% of the time and 
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to stoop, kneel, crouch or crawl up to 33% of the time. Additionally, fifty-seven percent 

of the claims in Plaintiff’s unit were roof-related and consequently required ascending 

and descending ladders. This evidence strongly suggests climbing ladders and working 

at exposed heights was an essential function of the job. 

Plaintiff responds by pointing out that Defendant accommodated him for over a 

year. We have said, however, that plaintiffs cannot rely on an employer’s 

accommodation to prove job duties are nonessential because this would “perversely 

punish employers for going beyond the minimum standards of the ADA by providing 

additional accommodation to their employees.” Robert, 691 F.3d at 1217. Plaintiff also 

claims the number of field assignments given to other adjusters “did not significantly 

increase and, in some cases, decreased after Mr. Wehrley’s injury.” Appellant’s Br. at 8. 

But the only evidence Plaintiff introduces in support of this claim are two tables showing 

the number of “property assignments” to field adjusters in Defendant’s northern and 

southern Colorado regions. Appellant’s App., vol. IV at 423. But these tables are only 

for 2008, even though Plaintiff’s injury occurred in June 2007. So we simply cannot 

draw the conclusion Plaintiff would have us to based on the evidence presented. Finally, 

Plaintiff submits the affidavit of another adjuster who worked for Defendant until July 

2008. That adjuster said he was not aware of any increased workload as a result of 

Plaintiff’s injury and never heard any other adjusters complain. This affidavit, however, 

is insufficient to create a factual dispute because it does nothing to disprove Defendant’s 

assertion that climbing ladders was an essential function of the field claims adjuster 

position. Thus, we affirm the district court’s decision on the alternative ground that 
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Plaintiff was unable to perform an essential function of his job. 

III. 

We next address Plaintiff’s ADA retaliation claim. The ADA prohibits both 

“discriminat[ing] against any individual because such individual has opposed any act or 

practice made unlawful by this chapter” and “interfere[ing] with any individual in the 

exercise or enjoyment of . . . any right granted or protected by this chapter.” 42 U.S.C. 

§ 12203(a), (b). In the absence of direct evidence of retaliation, a plaintiff may make out 

an ADA retaliation claim under the McDonnell Douglas burden-shifting framework. A 

prima facie case requires Plaintiff to show (1) he engaged in protected activity, (2) a 

reasonable employee would have found the challenged action materially adverse, and (3) 

a causal connection existed between the protected activity and the material adverse 

action. Reinhardt v. Albuquerque Public Schs. Bd. of Educ., 595 F.3d 1126, 1131 (10th 

Cir. 2010). We have held that requests for reasonable accommodation are protected 

activity under the ADA. Jones v. U.P.S., Inc., 502 F.3d 1176, 1194 (10th Cir. 2007). 

And, unlike an ADA discrimination suit, a plaintiff in an ADA retaliation suit need not 

show he suffered from an actual disability as long as he had a “reasonable, good faith 

belief the statute ha[d] been violated.” Selenke v. Medical Imaging of Colo., 248 F.3d 

1249, 1264 (10th Cir. 2001). Here, the district court concluded “no reasonable jury could 

find that, in June 2007, Mr. Wehrley had a reasonable, good faith belief that simply 

because he could not descend a ladder he was disabled within the meaning of the ADA.” 

Wehrley v. Am. Family Mut. Ins. Co., 2012 WL 415421, at *9 (D. Colo., Feb. 9, 2012). 

In the alternative, the court held Plaintiff failed to show pretext for his termination. 
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We can accept the court’s second holding, but not its first. Plaintiff submitted an 

independent medical examination by Dr. Linda Mitchell conducted in February 2010. 

Dr. Mitchell noted that “prolonged walking or standing” made Plaintiff’s knee pain 

“worse.” Appellant’s App., vol. II at 192. She also said, “He is worse with prolonged 

sitting or standing and has to change positions about every 30 minutes.” Id. Plaintiff also 

submitted an expert report by a rehabilitation counselor, Helen Woodard, completed in 

January 2011. This report noted that Plaintiff “has difficulty walking very far and pain 

disrupts his sleep.” Id. at 275. The report opined that his injuries caused “disabilities that 

result in substantial limitations that affect [Plaintiff’s] ability to do one or more major life 

activities.” Id. at 277. Specifically, the report noted “limitations” in lifting, squatting, 

kneeling, crawling, climbing, working on ladders or at unprotected heights and that his 

disabilities “affect his ability” to do household activities such as cleaning. Id. Plaintiff’s 

own affidavit says the limitations detailed in these two documents “were in effect and as 

severe in July and August of 2008 as they were at the time the reports were prepared.” 

Id. at 168. This evidence is sufficient to create a factual issue regarding Plaintiff’s good 

faith belief that he was disabled. 

The district court focused on the wrong time-frame in considering whether 

Plaintiff believed he was disabled, looking at Plaintiff’s beliefs in June 2007 rather than 

when he was terminated in August 2008. By the time he was fired, Plaintiff had been 

placed on work restrictions and was experiencing all the limitations outlined in Dr. 

Mitchell and Ms. Woodard’s reports. Furthermore, the district court considered only 

Plaintiff’s inability to descend a ladder and disregarded his other limitations, such as 
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limitations in walking long distances, lifting, squatting, kneeling, crawling, climbing, and 

working at unprotected heights. Based on the evidence Plaintiff has presented, a jury 

could conclude that Plaintiff reasonably believed he was disabled in August 2008. 

But the district court is correct that Plaintiff has failed to establish pretext. 

Defendant says it fired Plaintiff for the non-discriminatory reason that he was unable to 

perform an essential function of his job—performing roof inspections. Thus, the burden 

shifted back to Plaintiff to show “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.” 

E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1052 (10th Cir. 2011). 

Plaintiff cannot meet that burden here. He admits he was unable to perform roof 

inspections in August 2008. But he points to several other facts which he says support 

pretext. First, another adjuster was unaware of complaints or additional burdens during 

Plaintiff’s year at a desk job. Second, Defendant only notified Plaintiff his job could be 

in jeopardy a few days before his firing, and previously indicated he was doing a good 

job. Third, Defendant made no effort to reassign Plaintiff, even though he expressed 

willingness to work in other positions. And finally, Defendant told Plaintiff he was 

ineligible for rehire. 

These facts are insufficient to show pretext. Even though Defendant voluntarily 

accommodated Plaintiff for over a year, it was not obligated to do so. Bourcy’s 

assurances to Plaintiff that he was doing a good job were perhaps misleading, but were 

not an assurance that Plaintiff would not be fired. Although Plaintiff might have been 
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able to adequately perform another job if reassigned, Plaintiff never requested 

reassignment to another position. Finally, although Defendant’s unwillingness to rehire 

Plaintiff may be somewhat suggestive of pretext, it cannot bear much weight. Before 

firing Plaintiff, Defendant verified that no desk job openings existed in the Denver office 

in Plaintiff’s areas of expertise. Because Plaintiff cannot show pretext, Defendant was 

entitled to summary judgment on Plaintiff’s ADA retaliation claim. 

IV. 

Plaintiff’s FMLA retaliation claim, like his ADA claims, is subject to the 

McDonnell Douglas burden-shifting analysis. To make out a prima facie case, Plaintiff 

must show (1) he engaged in a protected activity, (2) his employer took a materially 

adverse action, and (3) a causal connection exists between the protected activity and the 

adverse action. Khalik v. United Air Lines, 671 F.3d 1188, 1193 (10th Cir. 2012). The 

district court first held Plaintiff did not engage in protected activity because he never 

actually took FMLA leave. In the alternative, the court held Plaintiff failed to establish a 

causal connection between the protected activity and the firing. 

In support of its first holding, the district court said, “Tenth Circuit law is unsettled 

as to whether an employee must actually have taken FMLA leave as a prerequisite to a 

retaliation claim.” Wehrley, 2012 WL 415421 at *14. The court cited our unpublished 

decision in Wilkins v. Packerware Corp., 260 F. App’x 98, 103 (10th Cir. 2008) 

(unpublished), where we said it was an open question whether “the lawful taking of 

FLMA leave is a prerequisite to a retaliation claim.” But Wilkins only addressed whether 

someone must actually be eligible for FMLA leave in order to bring a retaliation claim. 
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Id. Whether the plaintiff must actually take FMLA leave is a different question. Three 

other circuits have concluded that notifying an employer of the intent to take FMLA 

leave is protected activity. Pereda v. Brookdale Senior Living Communities, Inc., 666 

F.3d 1269, 1276 n.8 (11th Cir. 2012); Erdman v. Nationwide Ins. Co., 582 F.3d 500, 509 

(3d Cir. 2009); Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314 (6th Cir. 

2001) (“The right to take . . . leave pursuant to the FMLA includes the right to declare an 

intention to take such leave in the future.”). 

We are persuaded to follow these circuits for two reasons. First, the FMLA 

requires an employee to provide his employer “not less than 30 days’ notice” before 

taking leave for foreseeable medical treatment. 29 U.S.C. § 2612(e)(2). Because the 

FMLA expressly requires this notice, giving such notice reasonably must be “protected 

activity.” Second, any other view would lead to an absurd result—an employee would be 

unprotected from retaliation during the thirty or more days prior to taking FMLA leave. 

As the Third Circuit observed, this “would perversely allow a[n] employer to limit an 

FMLA plaintiff’s theories of recovery by preemptively firing her.” Erdman, 582 F.3d at 

509. We reject this absurd result and hold that giving an employer notice of intent to take 

FMLA leave, at least where the employee qualifies for that leave, it protected activity for 

purposes of an FMLA retaliation claim. So Plaintiff has satisfied the first element of a 

prima facie case. 

We also must reject the district court’s alternative holding that Plaintiff failed to 

show a causal connection between his protected activity and his firing. Plaintiff relies on 

the temporal proximity between his statement of intent to take FMLA leave and his 
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firing. Temporal proximity can be “relevant evidence of a causal connection sufficient to 

justify an inference of retaliatory motive.” Metzler v. Fed. Home Loan Bank of Topeka, 

464 F.3d 1164, 1171 (10th Cir. 2006) (internal quotation marks omitted). “We have 

emphasized, however, that a plaintiff may rely on temporal proximity alone only if ‘the 

termination is very closely connected in time to the protected activity.’” Id. (quoting 

Anderson v. Coors Brewing, 181 F.3d 1171, 1179 (10th Cir. 1999)). In Metzler, the 

plaintiff was terminated “at most about 6 weeks after [the defendant] knew [the plaintiff] 

intended to engage in protected activity and within as little as four weeks of [the 

plaintiff’s] request for FMLA-protected leave.” Id. at 1171–72. We said, “Because [the 

plaintiff’s] termination was therefore ‘very closely connected in time’ to her protected 

FMLA activity, she has established the third, and final, element of her prima facie case.” 

Id. at 1172 (quoting Anderson, 181 F.3d at 1179) (internal citation omitted). Here, 

Defendant fired Plaintiff only five weeks after he informed Bourcy he might take FMLA 

leave. Under Metzler, this temporal connection alone is enough to satisfy the third 

element of a prima facie case. Because the second element is not in dispute, Plaintiff has 

met his initial burden under the McDonnell Douglas framework. 

The district court ended its analysis here, but we do not. We may affirm summary 

judgment on any basis supported by the record. See Seegmiller, 528 F.3d at 767. Once 

Plaintiff makes out a prima facie case, Defendant must offer a legitimate reason for 

terminating Plaintiff. Robert, 691 F.3d at 1219. Defendant’s proffered reason—that 

Plaintiff could not fulfill an essential function of his job—is legitimate. So the burden 

shifts back to Plaintiff to present evidence supporting pretext. Id. As with his ADA 
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retaliation claim, Plaintiff has not adduced sufficient facts to establish pretext. None of 

the evidence suggests Defendant was opposed to Plaintiff taking FMLA leave. In fact, 

Bourcy encouraged Plaintiff to contact the FMLA coordinator as soon as possible when 

his surgery was initially scheduled. Cf. Sabourin v. University of Utah, 676 F.3d 950, 

960 (10th Cir. 2012) (supervisor “exploded” when she heard that employee took FMLA 

leave). Nor do Bourcy’s later inquiries regarding whether Plaintiff had taken FMLA 

leave suggest pretext. Plaintiff had postponed his surgery once, and Bourcy would 

naturally want to know if Plaintiff would be taking FMLA leave any time soon. And 

Bourcy assured Plaintiff his actions at the time were “reasonable.” So these facts do not 

establish pretext. Finally, Plaintiff’s ineligibility for rehire is not enough to establish 

pretext in this case. Although an employer’s unwillingness to rehire an employee in a 

position for which he is qualified could suggest pretext, it is not alone sufficient to show 

pretext. In short, even though Plaintiff had informed Defendant of his intent to take 

FMLA leave, there is insufficient evidence for a jury to find that Defendant fired Plaintiff 

because he intended to take FMLA leave. 

V. 

We turn finally to Plaintiff’s state law claim, over which the district court 

exercised supplemental jurisdiction. See 28 U.S.C. § 1367(a). Colorado courts have 

implied a cause of action for retaliation for the exercise of workers’ compensation rights. 

Lathrop v. Entenmann’s, Inc., 770 P.2d 1367, 1373 (Colo. Ct. App. 1989). “[S]ince an 

employee is granted the specific right to apply for and receive compensation under the 

[Workmen’s Compensation Act of Colorado], an employer’s retaliation against such an 
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employee for his exercise of such right violates Colorado’s public policy.” Lathrop, 770 

P.2d at 1373. Colorado’s case law regarding this claim is not well developed, but the 

claim at the very least requires evidence of a causal connection between the exercise of 

worker’s compensation rights and the firing. See id. at 1372–73 (agreeing with a court 

that recognized a common law claim “by an employee for wrongful discharge if the 

employee is discharged in retaliation for pursuing a workmen’s compensation claim.”). 

The district court concluded Plaintiff introduced insufficient evidence of this connection. 

Plaintiff points to several pieces of evidence that he thinks make the connection. 

First, Plaintiff challenged the workers’ compensation doctor’s conclusions by requesting 

an independent medical evaluation. Second, he repeatedly challenged Sentry’s decision 

to deny him surgery. Third, only a two-month gap separated his request for surgery from 

his termination. Fourth, Bourcy “pushed” Plaintiff to have his personal insurer cover the 

surgery, rather than Sentry. And, fifth, Bourcy decided to fire Plaintiff after a conference 

call that included the attorney involved in Plaintiff’s workers’ compensation claim. 

These facts are not sufficient to overcome summary judgment. The fact that 

Plaintiff disputed a number of workers’ compensation determinations over the ninemonth period leading up to his firing suggests a possible motive for retaliation, but it does 

not undermine Defendant’s stated reason for terminating Plaintiff. Furthermore, Bourcy 

did not “push” Plaintiff to have his personal insurer cover the surgery until after Sentry 

denied coverage. So this evidence does not suggest Bourcy wanted to keep Sentry from 

having to cover the surgery. At most, it indicates that Bourcy wanted Plaintiff to obtain 

the surgery through other means once Sentry denied coverage. Finally, none of the 
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deposition testimony related to the conference call suggests that Plaintiff’s workers’ 

compensation claim had anything to do with his termination. The mere fact that an 

attorney involved with that claim was on the phone is not enough to show causation. So 

Defendant was entitled to summary judgment on this claim. 

AFFIRMED. 

 Entered for the Court, 

Bobby R. Baldock 

United States Circuit Judge