from the United States District Court for the District of
Colorado (D.C. No. 1:17-CV-02101-MEH-KLM)
A. Whitcomb, (LaQunya L. Baker, with him on the briefs),
Whitcomb, Selinsky, McAuliffe, PC., Denver, Colorado, for
Plaintiff - Appellant.
R. Mann, Gordon & Rees LLP, Denver, Colorado, for
Defendant - Appellee.
L. Lee, Deputy General Counsel, Jennifer S. Goldstein,
Associate General Counsel, Elizabeth E. Theran, Assistant
General Counsel, and Julie L. Gantz, Attorney, Equal
Employment Opportunity Commission, Office of General Counsel,
Washington, D.C., filed an amicus curiae brief in support of
MATHESON, PHILLIPS, and MORITZ, Circuit Judges.
MATHESON, CIRCUIT JUDGE.
Tesone claimed that Empire Marketing Strategies
("EMS") discriminated against her under the
Americans with Disabilities Act ("ADA") when it
terminated her employment. The district court granted summary
judgment to EMS.
appeal, Ms. Tesone alleges the district court erred when it
denied her motions to (1) amend the scheduling order to
extend the time for her to designate an expert and (2) amend
her complaint. We disagree and affirm the denials. She also
contends the court erred when it (3) granted summary judgment
to EMS. We agree and remand for further consideration. We
exercise appellate jurisdiction under 28 U.S.C. §
Ms. Tesone filed her motion to amend the scheduling order on
November 1, 2018-nine months after the February 2018 expert
disclosure deadline, seven months after indicating her intent
to file, and three months after EMS's motion for summary
judgment. The district court did not abuse its discretion
when it found Ms. Tesone had not shown "good cause"
to extend the scheduling order as required under Federal Rule
of Civil Procedure 16(b)(4). See Gorsuch, Ltd., B.C. v.
Wells Fargo Nat'l Bank Ass'n, 771 F.3d 1230,
1241 (10th Cir. 2014).
Ms. Tesone filed her motion to amend her complaint on
November 7, 2018-nearly ten months after the January 2018
deadline for amending pleadings. The district court did not
abuse its discretion when it found Ms. Tesone had not shown
"good cause" under Rule 16(b)(4) as to why she
should be allowed to amend after the scheduling order
the district court erred on summary judgment. The court said
an expert must be used to prove a disability in
discrimination cases brought under the ADA. It granted
summary judgment because Ms. Tesone did not have a medical
expert witness to prove she suffered from lower back pain
that substantially interfered with her ability to lift. We
disagree that the ADA always requires an expert.
2012, EMS hired Ms. Tesone as a Product Retail Sales
Merchandiser. Her job duties included changing or
"resetting" retail displays in grocery stores. When
she was hired, Ms. Tesone informed EMS that she had back
problems and could not lift more than 15
October 2016, Ms. Tesone was assigned to complete a reset in
Gunnison, Colorado. Because she anticipated the reset would
require long hours, she prearranged to stay in Gunnison for
an additional night. She did not seek EMS's approval for
this extension, and EMS did not approve the stay.
after the trip, EMS met with Ms. Tesone to discuss the
unapproved October hotel stay and "general performance
issues." Aplt. App. at 19; see also id. at 190.
During this meeting, Ms. Tesone referred to her "lifting
limitation." Id. at 190. EMS requested a
doctor's note documenting the limitation. Ms. Tesone did
not immediately provide a note. EMS renewed its request at
least four times. Four months after the meeting, Ms. Tesone
provided a letter from Dr. Brian Manjarres. She had not met
Dr. Manjarres or consulted with him about her health before
obtaining the note. The letter stated Ms. Tesone "has
certain limitations related to muscle weakness" and
"chronic lower back pain." Id. at 166. It
"recommend[ed] the following accommodations: 1) No
lifting over head 2) Can not [sic] lift spatially in front of
her more than 15 pounds." Id.
December 2016 and February 2017, EMS spoke with Ms. Tesone
multiple times about various workplace issues, including
"her communication with coworkers." Id. at
19-20; see also id. at 191. On February 27, 2017,
EMS terminated Ms. Tesone's employment, citing
"consistent violations of company policies."
Id. at 192.
Tesone filed a Charge of Discrimination with the Equal
Employment Opportunity Commission ("EEOC"). The
charging form listed ten categories of discrimination and
asked her to "check [the] appropriate box(es)" to
indicate what form of discrimination she had experienced. Ms.
Tesone checked only the "disability" box and left
the "retaliation" box blank. She also provided a
statement describing "the particulars."
Id. at 434. It read:
I began working for Respondent [EMS] in 2010. I have a
disability, as defined within the meaning of the relevant
statute, of which Respondent was aware. Throughout my
employment I had a reasonable accommodation due to my
disability, a lifting restriction. During the relevant time
period Ms. Kelly Bruce began working for Respondent in my
chain of command. Subsequent to this the terms/conditions of
my employment changed. For instance, but not limited to, I
was no longer allowed to train employees, I was offered
different work, and my accommodation was not honored.
Additionally, an expected promotion, to Lead, was denied and
given to an employee outside my protected class with less
seniority and experience than me. On or about February 28,
2017, I was discharged.
I believe that I have been discriminated against on the basis
of a disability in violation of the Americans with
Disabilities Act of 1990, as amended.
2017, the EEOC closed Ms. Tesone's file and notified her
of her right to sue.
August 31, 2017, Ms. Tesone filed a complaint against EMS and
two of its employees in the United States District Court for
the District of Colorado. She asserted three claims: (1)
disability discrimination under the ADA (against EMS), (2)
interference with contract and prospective business advantage
(against the EMS employees), and (3) intentional infliction
of emotional distress ("IIED") (against the EMS
Scheduling Order and Dismissals
district court's November 21, 2017 scheduling order set
deadlines of (1) January 22, 2018, to amend pleadings; (2)
May 21, 2018, to complete discovery; and (3) February 5,
2018, to disclose expert witnesses. The court dismissed the
IIED claim against both employee defendants and dismissed the
tortious interference claim against one employee defendant.
The parties then stipulated to dismissal of the tortious
interference claim against the second employee defendant,
leaving only the ADA claim against EMS.
Motions for Summary Judgment, to Enlarge Time, and to
parties began deposing witnesses on March 20, 2018. During
depositions, EMS's counsel told Ms. Tesone's attorney
that without expert evidence regarding her disability, Ms.
Tesone's ADA claim must fail. The next day, Ms.
Tesone's attorney emailed EMS's counsel, stating,
"I expect to file a motion for the enlargement of time
to appoint and disclose experts." Supp. App. at 68.
20, 2018, EMS moved for summary judgment, arguing in part
that Ms. Tesone could not establish a prima facie case of
discrimination because she "offer[ed] no expert report
or other admissible evidence establishing that her impairment
caused limitations to perform a major life activity."
Aplt. App. at 23. On November 1, 2018, the parties had a
settlement conference before a magistrate judge,
informed Ms. Tesone that she could not prevail without an
expert witness. The same day, Ms. Tesone filed a motion for
an enlargement of time to designate an expert witness. Six
days later, she also filed a motion to amend her complaint to
add ADA claims alleging (1) discrimination on the basis of a
perceived disability and (2) retaliation.
District Court Rulings
final pretrial conference on November 8, 2018, EMS's
attorney stated that "[t]he motion to amend the
complaint . . . wreaks [sic] of an attempt to save the case .
. . at the 11th hour." Id. at 525. The district
court responded, "Well, of course, it doesn't wreak
of it. . . . [I]t is that." Id. The court then
denied Ms. Tesone's motion for enlargement of time,
reasoning: "I think I'm probably overly generous in
extending deadlines . . . because I like to protect a
plaintiff's rights, but I don't have any choice here.
. . . I can't find a legal basis to grant [it], so
therefore . . . [the] motion for extension of time to
designate an expert witness, is denied." Id. at
January 17, 2019, the district court issued an order denying
Ms. Tesone's motion to amend. The order briefly explained
the court's basis for denying the motion to extend the
expert disclosure deadline, stating, "I denied the
motions . . . concluding that [Ms. Tesone] could not
demonstrate the 'good cause' necessary to amend the
Scheduling Order under Rule 16(b)(4)." Id. at
551. It then explained that "there is no material
difference in the delay to bring these claims and the failure
to designate an expert witness." Id. at 552.
The court noted "no reason why [Ms. Tesone] could not
have asserted her claims in the Complaint." Id.
at 554. It also concluded that Ms. Tesone's proposed
retaliation amendment would be futile because Ms. Tesone did
not exhaust her administrative remedies by filing a
retaliation claim with the EEOC. It thus denied the motion to
amend, finding that Ms. Tesone "[had] not shown good
cause to modify the Scheduling Order under Rule
16(b)(4)." Id. at 555.
same day, the court also granted EMS's motion for summary
judgment. It noted that Ms. Tesone bore the burden "to
establish a prima facie case of discrimination,"
id. at 560, and stated that she "will not be
able to" do so, id. at 557. It determined she
had not carried this burden because she "presented no
expert medical evidence that any of her major life activities
have been substantially limited by her alleged
disability." Id. at 561 (quotations omitted).
The court noted that Ms. Tesone provided a doctor's note
describing her disability but said "this note [was] not
accompanied with an affidavit and therefore [was]
inadmissible hearsay." Id. at 562. It also
cited Felkins v. City of Lakewood, 774 F.3d 647');">774 F.3d 647
(10th Cir. 2014), in which a plaintiff who failed to provide
expert medical evidence was unable to establish that she had
a disability as defined in the ADA. The court concluded that
"[Ms. Tesone's] case suffers from the same
deficiency as the plaintiff's case in
Felkins" and thus found "summary judgment
[was] appropriate." Aplt. App. at 562.
district court entered its final judgment on January 17,
2019, and Ms. Tesone timely appealed.
following discussion of the three issues that Ms. Tesone
raises on appeal, we affirm the district court's denial
of her motions to (A) enlarge the time to designate an expert
witness and (B) amend her complaint. We reverse (C) the
district court's grant of EMS's motion for summary
judgment and remand for further proceedings on that issue.
Motion to Extend Time to Disclose an Expert
Standard of Review
review a court's refusal to enter a new scheduling order
for abuse of discretion." Rimbert v. Eli Lilly &
Co., 647 F.3d 1247, 1254 (10th Cir. 2011); see also
Burks v. Okla. Publ'g Co., 81 F.3d 975, 978 (10th
Cir. 1996) (same).
Rule of Civil Procedure 16(b)(4) provides that scheduling
orders "may be modified only for good cause and with the
judge's consent." "In practice, this standard
requires the movant to show the scheduling deadlines cannot
be met despite the movant's diligent efforts."
Gorsuch, 771 F.3d at 1241 (quotations and
alterations omitted); see also Parker v. Columbia
Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000)
("[A] finding of 'good cause' depends on the
diligence of the moving party."). "Good cause"
also "obligates the moving party to provide an adequate
explanation for any delay." Husky Ventures, Inc. v.
B55 Invs., Ltd., 911 F.3d 1000, 1020 (10th Cir. 2018)
courts have considerable discretion in determining what kind
of showing satisfies this . . . good cause standard." 3
James Wm. Moore, Moore's Federal Practice - Civil §
16.14[b] (3d ed. 2019). In making this determination,
"the factor on which courts are most likely to focus . .
. is the relative diligence of the lawyer . . . who seek[s]
the change." Id. "'[G]ood cause'
is likely to be found when the moving party has been
generally diligent, the need for more time was neither
foreseeable nor ...