                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                          February 7, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
JIMMY GARDENHIRE,

      Plaintiff - Appellant,

v.                                                           No. 17-3048
                                                   (D.C. No. 5:15-CV-04914-DDC)
JOHNS MANVILLE,                                               (D. Kan.)

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BALDOCK, KELLY, and O’BRIEN, Circuit Judges.
                  _________________________________

      In this employment discrimination case, Jimmy Gardenhire appeals from a district

court order that granted summary judgment to his employer, Johns Manville (JM).

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

                                     BACKGROUND

      In 2007, Gardenhire began working as a machine attendant for JM, a manufacturer

of fiberglass insulation. JM eventually promoted Gardenhire to an inspector-packer

position, which required that he “[p]repare, remove, pack, scrap or otherwise dispose

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
of[ ] all [insulation] material coming from the [production line].” Aplt. App., Vol. I at

144. These activities involved manually picking up and moving insulation items “all day

long.” Aplee. Supp. App. at 73.

       In December 2012, Gardenhire broke his left elbow while ice skating. An

orthopedic surgeon imposed work restrictions of one-handed jobs only and no

left-handed lifting for four weeks. Consequently, Gardenhire began taking FMLA leave

and short-term disability leave. After Gardenhire’s FMLA leave expired, his doctor,

James Bogener, M.D., provided a medical note dated April 17, 2013, extending the

restrictions for six more weeks. On June 5, 2013, Dr. Bogener again extended

Gardenhire’s restrictions for six weeks.

       After the short-term disability coverage ended on June 29, Gardenhire sought

permanent and total disability benefits from JM’s insurer. On the disability application,

Gardenhire indicated he could not work because, among other things, elbow weakness

prevented him from lifting insulation rolls and pulling them apart. Dr. Bogener

submitted an attending-physician statement, stating that Gardenhire was restricted to

one-handed jobs through at least August 7, pending a re-evaluation of Gardenhire’s

status. The insurer denied Gardenhire’s application.

       On July 29, 2013, JM’s regional human-resources manager, Shirley Vawter, sent

Gardenhire a letter, seeking information about his return to work. She noted that his

“leave [had] continued to be extended several times until the now current expected return

to work date of August 8, 2013,” and that further medical information was needed “to

determine what further reasonable accommodations [JM could] offer.” Id. at 153. She

                                             2
instructed Gardenhire to “discuss with [his] physician [his] day to day [job]

responsibilities,” id. at 153, and she attached to the letter various forms, including a

“Request for Medical Information for Reasonable Accommodation,” id. at 156.

       On August 9, Dr. Bogener completed the reasonable-accommodation form, stating

that Gardenhire could perform “[o]ne handed job[s] only, [with] no lifting [using] the left

hand.” Id. at 232. Dr. Bogener indicated he would re-assess Gardenhire’s condition on

August 21. Id. On that date, Dr. Bogener completed another work-restrictions note,

stating that Gardenhire could perform only “one-handed job[s] [requiring] no lifting with

the left hand for six [more] weeks.” Aplt. App., Vol. I at 158.

       Vawter considered whether JM could reasonably accommodate Gardenhire’s

restrictions, but ultimately concluded no reasonable accommodation was available. She

then decided to terminate Gardenhire, effective August 30, 2013.

       Nearly eight months later, in April 2014, Gardenhire contacted Dr. Bogener and

requested a full work release, retroactive to September 1, 2013. “[B]ased on the

information Mr. Gardenhire provided, [Dr. Bogener] signed a return to work form

indicating Mr. Gardenhire felt he was ready to return to work on September 1, 2013.”

Aplee. Supp. App. at 165.

       Gardenhire administratively challenged his termination and then sued JM in

federal court. He advanced claims under the Americans with Disabilities Act (ADA),

42 U.S.C. §§ 12101-12213; the Family Medical Leave Act (FMLA), 29 U.S.C.

§§ 2601-2654; and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to



                                              3
2000e-17. JM successfully moved for summary judgment on all of Gardenhire’s claims.1

Gardenhire now appeals.

                                        DISCUSSION
                                  I. Standards of Review

       We review a district court’s grant of summary judgment de novo. Emcasco Ins.

Co. v. CE Design, Ltd., 784 F.3d 1371, 1378 (10th Cir. 2015). In doing so, we “view the

factual record and make reasonable inferences therefrom in the light most favorable to

the party opposing summary judgment.” Id. (internal quotation marks omitted). “We

will uphold the district court’s grant of summary judgment only if ‘there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”

Id. (quoting Fed. R. Civ. P. 56(a)).

                                       II. ADA Claim

       The ADA requires employers to make “reasonable accommodations to the known

physical or mental limitations of an otherwise qualified individual with a disability,”

unless “the accommodation[s] would impose an undue hardship.” 42 U.S.C.

§ 12112(b)(5)(A). When a claim alleging a violation of the ADA is based on

circumstantial evidence, we apply the familiar McDonnell Douglas2 burden-shifting

framework. Williams v. FedEx Corp. Servs., 849 F.3d 889, 896 (10th Cir. 2017). Under


       1
         Gardenhire argues that the district court entered summary judgment on issues
not raised by JM. We disagree. JM’s summary-judgment motion adequately targeted
all of the issues identified in the district court’s pretrial order, which “supersede[d]
the pleadings and control[ed] the subsequent course of litigation,” Hullman v. Bd. of
Trs. of Pratt Cmty. Coll., 950 F.2d 665, 667 (10th Cir. 1991).
       2
           McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).
                                             4
that framework, a plaintiff must first establish a prima facie case of discrimination by

showing that: “(1) he is disabled (or perceived as disabled) as defined by the ADA,

(2) he is qualified to perform the essential functions of his job with or without reasonable

accommodation, and (3) he suffered discrimination as a result of his disability.” Id.

(internal quotation marks omitted). The failure to provide reasonable accommodations

constitutes disability discrimination under the ADA. Smith v. Midland Brake, Inc.,

180 F.3d 1154, 1178 n.12 (10th Cir. 1999) (en banc). As we explain below, Gardenhire’s

ADA claim fails the second prong of the prima-facie test.

                                  A. Essential Functions

       Gardenhire argues that his medical restriction on lifting with his left arm did not

prevent the performance of his job’s essential functions.

       Evidence of whether a particular function is essential to a job includes (but
       is not necessarily limited to) (1) the employer’s judgment as to which
       functions are essential, (2) written job descriptions prepared before
       advertising or interviewing applicants for the job, (3) the consequences of
       not requiring the incumbent to perform the function, and (4) the current
       work experience of incumbents in similar jobs.
Hawkins v. Schwan’s Home Serv., Inc., 778 F.3d 877, 887 (10th Cir. 2015) (internal

quotation marks omitted).

       JM contends that lifting with both arms is an essential function of the

inspector-packer position. We agree. The written job description for the

inspector-packer position states that the employee must “remove . . . all material coming

from the machine” and “[s]et aside defective material.” Aplt. App., Vol. I at 144.

Gardenhire testified that the removal of materials, which typically weigh between “25 to


                                             5
55 pounds,” Aplee. Supp. App. at 21, was accomplished by “grab[bing] them” and

“lift[ing] them” with his “arms,” Aplt. App., Vol. I at 148. Although he could sometimes

use just one arm, the job at other times “required [him] to use two hands . . . to be able to

lift some material from one area to the next” and to “throw it to another location.” Aplee.

Supp. App. at 22. We conclude that no reasonable jury could find that Gardenhire was

able to perform the essential functions of his job using just one arm.

                             B. Reasonable Accommodations

       “The determination of whether a requested accommodation is reasonable must be

made on the facts of each case taking into consideration the particular individual’s

disability and employment position.” Punt v. Kelly Servs., 862 F.3d 1040, 1050

(10th Cir. 2017) (internal quotation marks omitted). “[A]n employee’s request to be

relieved from an essential function of [his] position is not, as a matter of law, a

reasonable or even plausible accommodation.” Id. at 1051 (internal quotation marks

omitted).

       Gardenhire argues JM should have accommodated his injury by “providing him

additional leave beyond August 30, 2013,” his termination date. Aplt. Opening Br. at 34.

He stresses that Dr. Bogener released him to work without any restrictions just two days

later. Although “a reasonable allowance of time for medical care and treatment may, in

appropriate circumstances, constitute a reasonable accommodation,” an employer “[i]s

not required to wait indefinitely for [the employee’s] recovery.” Hudson v. MCI

Telecomms. Corp., 87 F.3d 1167, 1169 (10th Cir. 1996). JM allowed Gardenhire eight

months of continuous leave before finally terminating him. Gardenhire does not cite any

                                              6
evidence that he notified JM contemporaneously to his termination that Dr. Bogener had

removed his work restrictions. Indeed, Dr. Bogener did not execute the medical-release

form until April 2014—nearly eight months after JM terminated Gardenhire.3 No

reasonably jury could find that JM failed to reasonably accommodate Gardenhire’s

injury.

                                  C. 100%-Healed Policy

          Gardenhire suggests he need not establish a prima facie case because he has

direct evidence of discrimination. See Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 n.3

(10th Cir. 1997) (stating that “[i]f the employer admits that the disability played a

prominent part in the decision, or the plaintiff has other direct evidence of

discrimination based on disability, the burden-shifting framework may be

unnecessary and inappropriate”). Specifically, he claims that JM requires employees

to be 100% healed before allowing them to resume work. Granted, such policies are

considered discriminatory because they “permit[ ] employers to substitute a

determination of whether a qualified individual is 100% healed from their injury for


          3
         In an attempt to show he was in fact released to work on September 1, 2013,
Gardenhire points to a Kansas Department of Labor form purportedly signed by
Dr. Bogener. On the form, which is dated October 9, 2013, a box is checked
indicating that Gardenhire “[w]as able to return to full-time work on . . . 9/1/13.”
Aplt. App., Vol. I at 234. But nothing on the form indicates that Gardenhire obtained
a medical release before April 2014. Nor does Gardenhire explain when, or even if,
he provided this form to JM. More troubling is Dr. Bogener’s affidavit testimony
casting doubt on the form’s authenticity. See Aplee. Supp. App. at 165 (Dr. Bogener
stated that he filled out a Department of Labor form on September 10, 2013, which
provided that “Gardenhire was unable to work and that he was restricted to
performing one handed jobs only as he could not lift with his left hand.” (emphasis
added)).
                                             7
the required individual assessment whether the qualified individual is able to perform

the essential functions of his or her job either with or without accommodation.”

McGregor v. Nat’l R.R. Passenger Corp., 187 F.3d 1113, 1116 (9th Cir. 1999)

(internal quotation marks omitted); see also Martin v. Kansas, 190 F.3d 1120,

1134-35 (10th Cir. 1999), overruled on other grounds, Bd. of Trs. of Univ. of Ala. v.

Garrett, 531 U.S. 356, 373-74 (2001).

      But there are two problems with Gardenhire’s position. First, he has not raised

a triable issue as to whether JM has such a policy. To show the existence of

100%-healed policy, Gardenhire cites the deposition testimony of a human-resources

associate, Janet Duerksen. She testified: “As far as I know, we have never allowed

an hourly employee to return [to work] with restrictions.” Aplt. App., Vol. I at 168.

      The district court found this testimony entirely speculative. We agree. When

asked about her role in applying “company rule[s], polic[ies], or practice[s],”

Duerksen said she “just . . . ma[de] the appropriate phone calls,” provided phone

numbers, and referred employees’ injury-related issues to Vawter (JM’s regional

human-resources manager). Id. at 165; see also id. at 187. Indeed, Duerksen

characterized her job as “clerical” in nature when it came to “leave and benefits and

accommodations.” Id. at 187. Further, Duerksen provided contradictory testimony

about whether JM allows employees to return to work with restrictions: “I believe

when there’s a worker comp injury, [JM] sometimes allows [employees] to work with

some restrictions.” Id. at 186.



                                           8
       Given that Duerksen served as little more than a conduit between employees

and Vawter, her testimony about the existence or extent of JM’s personnel policies is

not sufficient to create a triable issue of fact about a 100%-healed policy. See Bones

v. Honeywell Int’l, Inc., 366 F.3d 869, 876 (10th Cir. 2004) (“Testimony which is

grounded on speculation does not suffice to create a genuine issue of material fact to

withstand summary judgment.”); Thomas v. Int’l Bus. Machs., 48 F.3d 478, 485

(10th Cir. 1995) (Testimony that would be inadmissible at trial—because it is not

based on personal knowledge, or because it constitutes hearsay—cannot defeat a

summary judgment motion.). Moreover, it is undisputed that in July 2013, Vawter

attempted to ascertain from Gardenhire whether there were any “reasonable

accommodations” that might allow him to return to work. Aplee. Supp. App. at 153.

Such an attempt is inconsistent with the existence of a 100%-healed policy.4

       Second, a 100%-healed policy “cannot give rise to a finding of liability and relief

under the ADA without the statutorily required inquiry into whether those affected by

[the] policy are disabled and able to perform the essential functions of the jobs they seek

or desire with or without reasonable accommodation.” Hohider v. United Parcel Serv.,

Inc., 574 F.3d 169, 195 (3d Cir. 2009). As discussed above, Gardenhire has not shown a

triable issue as to whether he could perform the essential functions of his job with or

       4
        The evidence of Vawter’s accommodation attempt also forecloses
Gardenhire’s assertion that JM “does not have an interactive process, procedure,
protocol, practice or rule,” Aplt. Opening Br. at 30; see Dewitt v. Sw. Bell Tel. Co.,
845 F.3d 1299, 1315 (10th Cir. 2017) (“To facilitate the reasonable accommodation,
the federal regulations implementing the ADA envision an interactive process that
requires participation by both parties.” (brackets and internal quotation marks
omitted)).
                                             9
without a reasonable accommodation. Thus, whether or not JM had a 100%-healed

policy has no bearing on Gardenhire’s ADA claim. See, e.g., Moore v. Jackson Cty. Bd.

of Educ., 979 F. Supp.2d 1251, 1266 (N.D. Ala. 2013).

                                     III. FMLA Claims
                                        A. Retaliation

       “The FMLA entitles qualifying employees to take up to twelve weeks of unpaid

leave, without fear of termination for a serious health condition.” Dewitt, 845 F.3d at

1318 (brackets, ellipsis, and internal quotation marks omitted). “[I]t is unlawful for an

employer to retaliate against an employee for taking FMLA leave.” Id. (internal

quotation marks omitted).

       Without direct evidence of retaliation, Gardenhire must “establish[ ] a prima facie

case of retaliation[ ] by proving that (1) [ ]he engaged in a protected activity; (2) [JM]

took an action that a reasonable employee would have found materially adverse; and

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

action.” Id. (internal quotation marks omitted). The district court concluded Gardenhire

failed to show causation. Specifically, Gardenhire’s FMLA leave expired by April 2013,

but JM did not take any adverse action against him until August 30, 2013, when it fired

him. As the district court noted, a nearly five-month gulf between the expiration of

FMLA leave and an adverse employment action is insufficient to establish causation. See

Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (holding that a three

month period, standing alone, is too long to infer causation from temporal proximity).

With no other causal evidence, the district court determined that summary judgment was


                                             10
appropriate. See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999)

(“[U]nless the termination is very closely connected in time to the protected activity, the

plaintiff must rely on additional evidence beyond temporal proximity to establish

causation.”).

       On appeal, Gardenhire does not address the district court’s causal determination.

He has, thus, waived any challenge to that determination. See Utahns for Better Transp.

v. U.S. Dep’t of Transp., 305 F.3d 1152, 1175 (10th Cir. 2002) (“[I]ssues will be deemed

waived if they are not adequately briefed.”). In any event, we have reviewed the district

court’s determination, and we conclude that summary judgment was appropriate on his

FMLA retaliation claim.

                                      B. Interference

       Gardenhire asserts that JM’s “100% healed practice . . . interfered with [his] right

to be restored to his position during the initial 12 weeks of his leave.” Aplt. Opening Br.

at 45. To establish a prima facie case of FMLA interference, Gardenhire must show that

(1) he was entitled to FMLA leave, (2) JM took some adverse action that interfered with

his right to take FMLA leave, and (3) this adverse action was related to the exercise or

attempted exercise of his FMLA rights. See Metzler v. Fed. Home Loan Bank of Topeka,

464 F.3d 1164, 1180 (10th Cir. 2006). Employees who take FMLA leave are entitled,

upon their return, to be restored to the job they held when the leave commenced or to be

restored to an equivalent job with equivalent benefits, pay, and other employment terms

and conditions. See 29 U.S.C. § 2614(a)(1).



                                             11
       The district court concluded that Gardenhire’s interference claim failed the

adverse-action prongs of a prima facie case. Specifically, the district court observed that

when JM fired Gardenhire, he had no right to reinstatement because his FMLA leave had

expired almost five months earlier. Although the district court’s observation is accurate,

we conclude that summary judgment was appropriate on this claim because (1) as we

noted earlier, Gardenhire has not shown a triable issue as to whether JM even had a

100%-healed policy; and (2) even if such a policy existed, the FMLA allows an

“employer to have a uniformly applied practice or policy that requires each such

employee to receive certification from the health care provider of the employee that the

employee is able to resume work.” Id. § 2614(a)(4). Thus, summary judgment was

appropriately granted on Gardenhire’s FMLA interference claim.

                                    IV. Title VII Claim

       Gardenhire contends that “Caucasian employees were promoted before him,” were

assigned less difficult jobs, and were supervised less “oppressively.” Aplt. Opening Br.

at 47. Title VII prohibits an employer from “discriminat[ing] against any individual with

respect to his compensation, terms, conditions, or privileges of employment, because of

such individual’s race, color, religion, sex, or national origin.” 42 U.S.C.

§ 2000e-2(a)(1). Generally, to make out a prima facie case of discrimination, an

employee must show (1) membership in a protected class; (2) an adverse employment

action; and (3) that the challenged action took place under circumstances giving rise to an

inference of discrimination. EEOC v. PVNF, L.L.C., 487 F.3d 790, 800 (10th Cir. 2007).

“One of the ways [the] third prong may be met . . . is by attempting to show that the

                                             12
employer treated similarly situated employees differently.” Jones v. Denver Post Corp.,

203 F.3d 748, 753 (10th Cir. 2000).

       The district court concluded that Gardenhire’s prima-facie case failed at the third

prong because the two Caucasian employees he identified as receiving better treatment—

Jimmy Yianakopulos and Lonnie Kent—were not similarly situated in material respects.

On appeal, Gardenhire does not address the district court’s conclusion. He has, thus,

waived any challenge to the district court’s conclusion. See Utahns for Better Transp.,

305 F.3d at 1175.

       Instead, Gardenhire cites his affidavit statements that (1) “[t]he other black

employees of [JM] . . . all discussed with me how they were put in the most difficult jobs,

were treated less favorably than Caucasian employees and were oppressively

supervised”; and (2) “[JM] refused to accommodate [another black employee] and fired

him.” Aplt. App., Vol. I at 142. But these affidavit statements are wholly insufficient to

avoid summary judgment. See Ellis v. J.R.’s Country Stores, Inc., 779 F.3d 1184,

1201-02 (10th Cir. 2015) (observing that inadmissible hearsay statements cannot defeat

summary judgment and that “conclusory and self-serving affidavits” carry no weight

(internal quotation marks omitted)).

                                       CONCLUSION

       The judgment of the district court is affirmed.
                                              Entered for the Court


                                              Bobby R. Baldock
                                              Circuit Judge

                                             13
