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Tesone v. Empire Marketing Strategies

United States Court of Appeals, Tenth Circuit

November 8, 2019

JONELLA TESONE, Plaintiff-Appellant,

          Appeal from the United States District Court for the District of Colorado (D.C. No. 1:17-CV-02101-MEH-KLM)

          Joseph A. Whitcomb, (LaQunya L. Baker, with him on the briefs), Whitcomb, Selinsky, McAuliffe, PC., Denver, Colorado, for Plaintiff - Appellant.

          John R. Mann, Gordon & Rees LLP, Denver, Colorado, for Defendant - Appellee.

          James 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 Appellant.

          Before MATHESON, PHILLIPS, and MORITZ, Circuit Judges.


         Jonella 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.

         On 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. § 1291.[1]

         First, 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).

         Second, 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 deadline.

         Third, 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.[2] 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.

         I. BACKGROUND

         A. Factual Background

         In 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 pounds.[3]

         In 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.[4] She did not seek EMS's approval for this extension, and EMS did not approve the stay.

         Shortly 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.

         Between 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.[5]

         Ms. 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.[6] 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.


         In June 2017, the EEOC closed Ms. Tesone's file and notified her of her right to sue.[7]

         B. Procedural Background

         1. Complaint

         On 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 employees).

         2. Scheduling Order and Dismissals

         The 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.

         3. Motions for Summary Judgment, to Enlarge Time, and to Amend

         The 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.

         On July 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, [8] who 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.

         4. District Court Rulings

         At the 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 534.[9]

         On 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.

         The 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.

         The district court entered its final judgment on January 17, 2019, and Ms. Tesone timely appealed.


         In the 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.

         A. Motion to Extend Time to Disclose an Expert

         1. Standard of Review

         "We 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).

         2. Legal Background

         Federal 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) (quotations omitted).

         "[T]rial 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[1][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 ...

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