Court Opinion: 10th Circuit Court of Appeals Opinion for Aug. 2

The 10th Circuit Court of Appeals

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

Lewis v. Peabody Rocky Mountain Services, LLC

Sarah Lewis sued her former employer, Peabody Rocky Mountain Services, LLC, after being terminated from her position as a beltman at Twentymile Mine. She alleged she was terminated because she is a woman, because of a perceived disability, for exercising her rights under the Family Medical Leave Act and in violation of Colorado public policy. She voluntarily dismissed her family leave and public policy claims and the district court granted summary judgment in favor of Peabody on the remaining claims. Lewis appealed and the 10th Circuit Court of Appeals affirmed. 

Peabody operates Twentymile Mine near Craig, Colorado. In 2000, Peabody hired an outside contractor to perform an evaluation of mine safety and to recommend qualification requirements for its employees. The contractor recommended requiring any employee in an “underground” position to pass a fit-for-duty exam. The exam included, per the contractor’s recommendation, all underground employees being able to lift 80 pounds above their heads. Peabody instituted the policy, requiring the 80-pound lift test upon hire and reserving the right to “request a physical capability assessment and/or return to work authorization” if an employee was absent for 90 days or more for a medical reason.

Lewis worked at Peabody as a rock duster and then a beltman. Both were underground positions and Lewis was required to pass the exam by showing she could lift 80 pounds at the time she was hired. According to the 10th Circuit opinion, she could. Once on the job, she noted she didn’t frequently have to lift 80 pounds, but she understood the requirement was a safety issue. In addition to her beltman duties, Lewis occasionally filled in for other employees, including as the above-ground facility technician and in haul-truck and wash-plant positions.

Lewis went on medical leave beginning in December 2017. Over the next few months, the 10th Circuit opinion noted, she had three separate surgeries on both her shoulders, her elbow and a wrist. She was treated by Dr. Sisk. The first six months of her leave were covered by short-term disability, and after that, she was placed on long-term medical leave. Lewis and Sisk discussed the fit-for-duty exam, but he didn’t administer one, the 10th Circuit opinion noted. In May 2018, Sisk cleared her to return to work “as long as she [wore] her [right] wrist brace to offload the [right] elbow.” 

Before she resumed work as a beltman, Lewis had to pass the exam again because she had been out of work for more than 90 days. Lewis took the test with Dr. Scherr, a workers’ compensation doctor who contracted with Peabody, though he didn’t personally administer the test, the 10th Circuit opinion noted. Over the course of several months, Lewis attempted seven times to lift 80 pounds in Scherr’s office. The most she could ever lift in Scherr’s office was 70 pounds. In August, Lewis recorded a video of herself lifting 80 pounds in her garage and sent the video to Barbara Binetti, head of human resources at Peabody. Lewis acknowledged this wasn’t an adequate stand-in for the exam, and she would have to pass the test in Scherr’s office before returning to work.

The 10th Circuit opinion noted Scherr and Sisk both expressed skepticism Lewis would ever be able to lift 80 pounds over her head and resume her previous occupation. Lewis alleged Scherr also twice expressed his opinion women should not work underground in the mine. 

After a while, because she hadn’t passed the exam, Lewis began to look at other open positions at Peabody that didn’t have the 80-pound lift requirement. Open positions at the mine were posted publicly. Peabody employees could complete and submit an application for any open job for which they believed they were qualified. Lewis inquired about other positions at the mine, including a facility technician position, a position in human resources and one in accounting. None of these jobs required her to lift 80 pounds. But there was no open human resources position at the time, and Lewis admits she wasn’t qualified to be an accountant. She wasn’t hired as a facility technician because, even though she had filled in for other employees a few times over the years, the open position now required EMT certification, which Lewis didn’t have. Peabody ultimately hired a facility technician who had EMT certification.

In March 2019, Peabody terminated Lewis’s employment after failing to find an open position for which she was qualified. Lewis filed a complaint with the Equal Employment Opportunity Commission and received her right-to-sue letter. She sued Peabody under Title VII for sex discrimination; under the Family Medical Leave Act for retaliation; under the Americans with Disabilities Act for disability discrimination; and under Colorado public policy for workers’ compensation retaliation. She voluntarily dismissed her Family Medical Leave Act and public policy claims. The district court granted summary judgment in favor of Peabody on her Title VII and ADA claims. Lewis appealed.

The 10th Circuit reviews a district court’s grant of summary judgment de novo, applying the same standard as the district court, the opinion noted citing the 10th Circuit Court of Appeals decision Hickey v. Brennan. The 10th Circuit will uphold a grant of summary judgment if, after reviewing the record, “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law,” the opinion noted citing the 10th Circuit Court of Appeals decision Holub v. Gdowski.

In considering a motion for summary judgment, the 10th Circuit views all disputed material facts in the light most favorable to the non-moving party, the opinion noted citing the 10th Circuit decision Litzsinger v. Adams Cnty. Coroner’s Off., “but only if a genuine dispute exists as to those facts,” citing the 10th Circuit decision Norwood v. United Parcel Serv., Inc. A party resisting summary judgment must “cit[e] to particular parts of materials in the record, including affidavits or declarations” to show a material fact is genuinely disputed, citing the 10th Circuit decision Felkins v. City of Lakewood. “An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated,” according to Federal Rule of Civil Procedure 56 (c)(4), which was cited in Felkins.

The 10th Circuit also makes all reasonable inferences in the light most favorable to the non-moving party, according to the opinion. But these inferences must be reasonable and based on facts in the record; they cannot be based on mere speculation, the opinion noted citing the 10th Circuit decision GeoMetWatch Corp. v. Behunin

According to the opinion, Lewis didn’t put forward any evidence that called into question Peabody’s stated justification for her termination: she wasn’t qualified for the job. The 10th Circuit contended the district court didn’t err in granting Peabody summary judgment on her Title VII sex discrimination claim.

The district court also granted summary judgment in favor of Peabody on Lewis’s ADA claim. In her opening brief, Lewis didn’t address this claim and didn’t indicate to the 10th Circuit where she believed the district court erred, according to the opinion. Therefore, the issue was waived, the opinion noted citing the 10th Circuit Court of Appeals decision Adler v. Wal-Mart Stores, Inc.

The 10th Circuit affirmed the district court’s grant of summary judgment in favor of Peabody.

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