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 fi eld claim adjuster for Defendant American Family Mutual Insuran ce Company. While investigating a roof claim in 2007, he fell from a ladder and injured his knee and back . He quickly return ed to work, where Defendant allowed him to stay off ladders . Although a doctor removed all work restrictions six months after the fall, Plain tiff challenged this determination and obtained medical restrictions from roof-related claims. Defendant accommodated these restrictions for a time, but finally told Plaint iff his job would be in jeopardy if he could not return to roof claims. Defendant then te rminated Plaintiff’s em ployment, more than a

* This order and judgment is not bind ing 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- 2 - year after the initial accident. Plaintiff filed th is 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. § 12 91, we affirm. I. Plaintiff began working for Defendant in 1999, and took a position as a property claim field senior adjuster in 2006. Hi s duties in that position included, among other things, on-site property inspections. The positi on’s job description said the job required “the ability to work in high, precarious pl aces 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 inte nded 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 percen t of claims were roof-related claims. Id., vol. IV at 418. In June 2007, Plaintiff fell from a ladde r while inspecting a roof and injured his knee and lower back. He file d a workers’ compen sation claim, and his supervisor, Jeff Bourcy, assigned him to desk wo rk until he could walk. Afte r Plaintiff was off crutches, Bourcy began assigning him to field claims that did not in volve roofs or ladders. In December 2007, Defendant’s workers’ compensa tion doctor determined that Plaintiff had reached maximum medical improvement and remo ved all Plaintiff’s wo rk restrictions. Plaintiff nevertheless requested an independ ent medical examinati on. The doctor who conducted this examin ation in April 2008 concluded Plai ntiff should avoid kneeling or- 3 - crawling when possible, but that some kn eeling and crawling would be acceptable. Bourcy then reassigned Plaintiff to roof clai ms, but Plaintiff quickly obtained ladder and roof restrictions from the wo rker’s compensation doctor. In July 2008, that doctor determined Plaintiff needed knee surgery and placed Pl aintiff on permanent work restrictions. On July 21, 2008, Plainti ff discussed with Bourcy his need for surgery and informed him he had surgery scheduled fo r July 30. Bourcy followed up that conversation with an email re ferring 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’ compen sation insurer, Sentry, declined to cover the surgery, Plaintiff postponed the surgery and challenged Sent ry’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 schedul ed, but that he was waiting to hear back from his insurance company. Bo urcy told Plaintiff this cour se 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 cl imbing roofs was an important part of the job and Plaintiff’s failure to performroof claims increased the wo rk 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 app lied for FMLA leave. Plaintiff responded no to both questions. Bourcy th en terminated Plaintiff’s empl oyment, citing his inability to perform roof inspections. Plaintiff’s termin ation letter said, “You are not eligible for- 4 - rehire consideration at Am erican Family Insurance.” 1 Appellant’s App., vol. II at 309. Sometime after Plaintiff’s firing, Sent ry 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 Ac t (ADA), (2) violation of Co lorado 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 dist rict 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 disc rimination claim. The ADA prohibits covered employers from discri minating 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 Dougla s Corp. v. Green, 411 U.S. 792 (1973). To establish a prima facie case of discrimination, Plaintiff mu st show (1) he was disabled,

1 Defendant claims it was w illing to rehire Plaintiff, re lying 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. Bu t 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 eviden ce, Plaintiff has created a factual dispute. On appeal from summary judgment, we must reso lve all factual disputes in the light most favorable to the non-moving party. Scott v. Harris, 55 0 U.S. 372, 380 (2007). Consequently, we must assume Defendant was unwilling to re hire Plaintiff to any other position.- 5 - (2) he was qualified, with or without reason able 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 di strict court held Plaintiff failed to show a genuine factual dispute as to the first elem ent because the evidence did not support a finding that Plaintiff was substantially impair ed in any major life ac tivity. We express no opinion on this point, becaus e 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 Ci r. 2008) (“[W]e may affirm on any basis supported by the record, even though not relie d 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). Evid ence 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 adver tising 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 th e job; and/or (vii) The current work experience of in cumbents in similar jobs. § 1630.2(n)(3). In this case, Plaintiff’s written job desc ription said essential functions of the job included the ability to work in high, precarious pl aces up to 33% of the time and- 6 - to stoop, kneel, crouch or craw l up to 33% of the time. A dditionally, fifty-seven percent of the claims in Plaintiff’s unit were r oof-related and conseque ntly 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 plai ntiffs cannot rely on an employer’s accommodation to prove job duties are nonessential because this would “perversely punish employers for going beyond the mi nimum 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 give n 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 Pl aintiff introduces in support of this claim are two tables showing the number of “property assignments” to fi eld adjusters in Defendant’s northern and southern Colorado regions. Appellant’s App., vol. IV at 423. But these tables are only for 2008, even th ough 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 ad juster who worked fo r Defendant until July 2008. That adjuster said he was not awar e of any increased workload as a result of Plaintiff’s injury and never h eard any other adjusters complain . This affidavit, however, is insufficient to create a factual dispute be cause it does nothing to disprove Defendant’s assertion that climbing ladders was an essen tial function of the field claims adjuster position. Thus, we affirm the district court’s decision on the alternative ground that- 7 - Plaintiff was unable to perform an essential function of his job. III. We next address Plaintiff’s ADA reta liation claim. The ADA prohibits both “discriminat[ing] against any individual because such individual ha s opposed any act or practice made unlawful by this chapter” and “i nterfere[ing] with any individual in the exercise or enjoyment of . . . any right grante d or protected by this chapter.” 42 U.S.C. § 12203(a), (b). In the absence of direct evid ence of retaliation, a plaintiff may make out an ADA retaliation claim under the McDonne ll 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 ma terially adverse, and (3) a causal connection existed between the prot ected activity and the material adverse action. Reinhardt v. Albuquerque Public Sc hs. Bd. of Educ., 595 F.3d 1126, 1131 (10th Cir. 2010). We have held that request s for reasonable accommodation are protected activity under the ADA. Jones v. U.P.S., Inc., 502 F.3d 11 76, 1194 (10th Cir. 2007). And, unlike an ADA discrimination suit, a pl aintiff in an ADA retaliation suit need not show he suffered from an actual disability as long as he ha d a “reasonable, good faith belief the statute ha[d] been violated.” Se lenke v. Medical Imaging of Colo., 248 F.3d 1249, 1264 (10th Cir. 2001). He re, the district court conclu ded “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 wa s 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.- 8 - We can accept the court’s se cond holding, but not its firs t. Plaintiff submitted an independent medical examination by Dr. Linda Mitchell conducted in February 2010. Dr. Mitchell noted that “prol onged 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, Hele n 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 in juries caused “disabilities that result in substantial limitations that affect [P laintiff’s] ability to do one or more major life activities.” Id. at 277. Specifically, the re port noted “limitations” in lifting, squatting, kneeling, crawling, climbing, working on ladders or at unpr otected heights and that his disabilities “affect his ability” to do household ac tivities such as cleaning. Id. Plaintiff’s own affidavit says the limitations detailed in these two documen ts “were in effect and as severe in July and August of 2008 as they we re 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 focuse d on the wrong time-frame in considering whether Plaintiff believed he was disabl ed, 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 experi encing all the limitati ons outlined in Dr. Mitchell and Ms. Woodard’s reports. Furtherm ore, the district court considered only Plaintiff’s inability to desce nd a ladder and disregarded hi s other limitations, such as- 9 - limitations in walking long dist ances, lifting, squatting, knee ling, crawling, climbing, and working at unprotected heights. Based on the evidence Plai ntiff has presented, a jury could conclude that Plainti ff reasonably believed he was disabled in August 2008. But the district court is correct that Plai ntiff has failed to establish pretext. Defendant says it fired Plainti ff for the non-discriminatory re ason that he was unable to perform an essential function of his job—performing roof in spections. Thus, the burden shifted back to Plaintiff to show “such we aknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffere d legitimate reasons for its action that a reasonable factfinder could rati onally find them unworthy of credence.” E.E.O.C. v. C.R. England, Inc., 64 4 F.3d 1028, 1052 (10th Cir. 2011). Plaintiff cannot meet that bu rden here. He admits he was unable to perform roof inspections in August 2008. But he points to several other facts wh ich 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. A nd finally, Defendant told Plaintiff he was ineligible for rehire. These facts are insufficient to show pretex t. Even though De fendant voluntarily accommodated Plaintiff for over a year, it wa s 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 Plainti ff would not be fired. Althou gh Plaintiff might have been- 10 - able to adequately perform another job if reassigned, Plaintiff never requested reassignment to another position. Finally, although Defenda nt’s unwillingness to rehire Plaintiff may be somewhat suggestive of pretex t, it cannot bear much weight. Before firing Plaintiff, Defendant verified that no de sk job openings existe d in the Denver office in Plaintiff’s areas of expertise. Because Plaintiff cannot show pretext, Defendant was entitled to summary judgment on Plai ntiff’s ADA retaliation claim. IV. Plaintiff’s FMLA retaliation claim, lik e his ADA claims, is subject to the McDonnell Douglas burden-shif ting 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 ex ists 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 Plai ntiff did not engage in protec ted 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 districtcourt 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 4154 21 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 W ilkins only addressed whether

someone must actually be eligible for FMLA leave in order to bring a retaliation claim.- 11 - 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. Broo kdale 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 Powe r Serv. Co., 272 F.3d 309, 314 (6th Cir. 2001) (“The right to take . . . leave pursuant to the FMLA includes th e right to declare an intention to take such l eave 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 treatm ent. 29 U.S.C. § 2612(e)(2). Because the FMLA expressly requires this notice, giving such notic e reasonably must be “protected activity.” Second, any other view would leadto an absurd result—an employee would be unprotected from retaliation duri ng 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 re sult and hold that giving an empl oyer notice of intent to take FMLA leave, at least where the employee qualifie s for that leave, it protected activity for purposes of an FMLA retaliation claim. So Plaintiff has satis fied the first element of a prima facie case. We also must reject the district court’s a lternative holding that Plaintiff failed to show a causal connection between his protected activity and his firing. Plaintiff relies on the temporal proximity between his statemen t of intent to take FMLA leave and his- 12 - firing. Temporal proximity can be “relevant evidence of a causal connection sufficient to justify an inference of retalia tory motive.” Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1171 (10th Cir. 2006) (internal quotati on 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 prot ected activity.’” Id. (quoting Anderson v. Coors Brewing, 181 F.3d 1171, 1179 (10th Cir. 1999)). In Metzler, the plaintiff was terminated “at mo st about 6 weeks after [the de fendant] knew [the plaintiff] intended to engage in protected activity and within as little as four weeks of [the plaintiff’s] request for FMLA-pro tected leave.” Id. at 1171– 72. We said, “Because [the plaintiff’s] termination was therefore ‘very cl osely connected in time’ to her protected FMLA activity, she has establishe d the third, and final, element of her prima facie case.” Id. at 1172 (quoting Anderson , 181 F.3d at 1179) (inter nal citation omitted). Here, Defendant fired Plaintiff only fi ve weeks after he informed Bourcy he might take FMLA leave. Under Metzler, this temporal connec tion alone is enough to satisfy the third element of a prima facie case. Because the seco nd element is not in dispute, Plaintiff has met his initial burden under th e 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, De fendant must offer a legitimate reason for terminating Plaintiff. Robert , 691 F.3d at 1219. Defenda nt’s proffered reason—that Plaintiff could not fulfill an essential function of his job—is legitimat e. So the burden shifts back to Plaintiff to pr esent evidence supporting pret ext. Id. As with his ADA- 13 - retaliation claim, Plaintiff has not adduced suffi cient 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. Sabour in v. University of Utah, 676 F.3d 950, 960 (10th Cir. 2012) (supervis or “exploded” when she heard that employee took FMLA leave). Nor do Bourcy’s later inquiries regarding whether Plai ntiff had taken FMLA leave suggest pretext. Plaintiff had post poned his surgery once, and Bourcy would naturally want to know if Plaintiff woul d 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 inelig ibility for rehire is not enough to establish pretext in this case. Alth ough 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 ha d informed Defendant of his intent to take FMLA leave, there is insufficien t evidence for a jury to find that Defendant fired Plaintiff because he intended to ta ke FMLA leave. V. We turn finally to Plaintiff’s state la w 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, 13 73 (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- 14 - employee for his exercise of such right viol ates Colorado’s public policy.” Lathrop, 770 P.2d at 1373. Colorado’s case law regardin g 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 pur suing a workmen’s compensation claim.”). The district court concluded Pl aintiff introduced insufficient ev idence of this connection. Plaintiff points to several pieces of eviden ce that he thinks make the connection. First, Plaintiff challenged the workers’ comp ensation doctor’s conclusions by requesting an independent medical evaluation. Second, he repeatedly challenged Sentry’s decision to deny him surgery. Third, only a two-mo nth gap separated his request for surgery from his termination. Fourth, Bourcy “pushed” Pl aintiff 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 wo rkers’ compensation claim. These facts are not sufficient to overcom e 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 te rminating 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 indi cates that Bourcy wanted Plaintiff to obtain the surgery through other mean s once Sentry denied covera ge. Finally, none of the- 15 - deposition testimony related to the conference call suggests that Plaintiff’s workers’ compensation claim had anything to do with hi s termination. The mere fact that an attorney involved with that cl aim was on the phone is not enough to show causation. So Defendant was entitled to summa ry judgment on this claim. AFFIRMED. Entered for the Court,

Bobby R. Baldock United States Circuit Judge