                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                    February 6, 2007
                            FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                       Clerk of Court

    R OBER T B UN D Y ,

                Plaintiff-Appellant,

    v.                                                 No. 06-2154
                                             (D.C. No. CIV-05-122 M CA -RLP)
    C HA V ES C OU N TY BO A RD OF                       (D . N.M .)
    CO M M ISSIONERS,

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before HO LM ES, M cKA Y, and BROR BY, Circuit Judges.




         Plaintiff-Appellant Robert Bundy appeals from the summary judgment in

his disability-discrimination case. W e have jurisdiction under 28 U.S.C. § 1291,

and we affirm.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
                                    B ACKGROUND

      M r. Bundy worked as a guard at the Chaves County Detention Center in

Roswell, New M exico. On October 9, 2003, he was injured in a car accident and

had to have his left arm amputated above the elbow. The next day, the C ounty’s

human-resource specialist, Sheila Nunez, mailed a letter to M r. Bundy’s home,

stating that he was being placed on leave under the Family and M edical Leave

Act (FM LA), and that he needed to have his physician fill out the enclosed FM LA

certification form. M r. Bundy’s physician, Dr. Fred Hensal, completed the form

on October 28 and returned it, indicating that M r. Bundy was unable to perform

any kind of work and that it was necessary for M r. Bundy to be absent from

work. 1 The final paragraph of Nunez’s letter directed M r. Bundy to “present a

‘release to return to w ork’ certificate from [his] health care provider . . . before

[he could] resume work.” Aplt. App. at 51.

      In late October 2003, after being released from the hospital, M r. Bundy met

with Nunez and discussed “the paperwork and how the disability worked and [he]

brought to her attention that [he] was interested in a dispatch job” with the

Sheriff. Id. at 58. But “[he] never said anything about not wanting to go back to

the jail.” Id. Instead, he asked Nunez to “send [him] advertisements . . . for any



1
       Dr. Hensal later indicated during his deposition that the probable duration
of M r. Bundy’s “incapacity” was three to six months, Aplt. App. at 153, but that
“he could [have] return[ed] to some form of lighter, limited duty if it were
available,” at the end of November 2003, id. at 81.

                                          -2-
job openings within the county that [he] was qualified for.” Id. Afterward,

M r. Bundy visited the D etention Center, where he told several of his co-workers

that “[he] had no idea” “when [he] was coming back to work,” and “that [it] was

up to [Dr. Hensal].” Id. at 59.

      M r. Bundy met with Dr. Hensal for treatment on October 28, 2003,

November 13, 2003, and January 21, 2004. Dr. Hensal told M r. Bundy that he

“had some concerns about a one-armed prison guard” and “about his ability to

return to that kind of work.” Id. at 76. But Dr. Hensal also told M r. Bundy that

“if the prison would allow him to go to work under those circumstances, [he]

wouldn’t stand in his way.” Id. at 77. Dr. Hensal testified during his deposition

that he could not recall M r. Bundy ever requesting a release to return to w ork or a

statement of physical limitations that could be provided to the County.

Additionally, Dr. Hensal could not recall M r. Bundy ever indicating an interest in

working as a dispatcher.

      On January 12, 2004, Nunez notified M r. Bundy that he was about to

exhaust his FM LA leave and that he needed to submit “a prognosis for return to

work from [his] physician . . . so that we may evaluate this situation further.”

Id. at 83. M r. Bundy responded, telling Nunez about an upcoming doctor

appointment on January 21 and that “when [he] got back from [his]

doctor . . . [he] would let her know what [he] needed.” Id. at 61. But M r. Bundy

did not provide Nunez with the information. Indeed, he later testified that he did

                                          -3-
not ask Dr. Hensal for a return-to-work release because he believed that

Dr. H ensal would not release him to work in the Detention Center. Id. at 136.

      On January 23, the County M anager, Stanton Riggs, notified M r. Bundy

that a pre-termination hearing had been scheduled for January 28 because

he had exhausted his FM LA leave and had provided neither “a medical

release . . . allowing [him] to return to work” at the Detention Center nor “a time

table as to when [he would] be able to return to regular duty.” Id. at 84. Riggs

also informed M r. Bundy that at the hearing, he would “be allowed to present any

documentation from [his] doctor regarding [his] return to work.” Id.

      At the pre-termination hearing, M r. Bundy offered nothing from his doctor,

and instead reiterated his interest in a dispatcher position. Riggs responded that

only the Sheriff could hire a dispatcher, and that “no matter w hat, you have got to

have a return-to-work release from your doctor.” Id. at 86 (quotation omitted).

Riggs terminated Bundy on February 2, 2004, citing his exhaustion of leave and

his lack of a release to return to work.

      In February 2005, after receiving from the Equal Employment Opportunity

Commission a determination that he was denied a reasonable accommodation,

M r. Bundy sued the County Board of Commissioners in federal court. The

complaint sought relief under the Americans with Disabilities Act (ADA),

42 U.S.C. § 12101-12213, the New M exico Human Rights A ct, N.M . Stat.

§ 28-1-7, and New M exico tort and contract law. The district court granted the

                                           -4-
Board summary judgment. Regarding the ADA claim, the district court ruled that

accommodating M r. Bundy’s disability by making him a dispatcher amounted to

an unreasonable accommodation:

             Combined with [M r. Bundy’s] failure to provide medical
      documentation or a timetable for returning to work, his request to be
      reassigned to a [dispatcher] position under the hiring authority of the
      County Sheriff placed [the Board] in an untenable dilemma rather
      than offering an avenue for reasonable accommodation. On the one
      hand, [the Board] could not send [M r. Bundy] back to his job as an
      Adult Detention Officer because [he] . . . never provided the medical
      documentation necessary to determine whether he could perform that
      job (or whether it was possible to restructure that job so as to
      accommodate [M r. Bundy’s] disability). On the other hand, [the
      Board] could not reassign [M r. Bundy] to the position of dispatcher
      because, even assuming [he] would be qualified to perform that job
      (with or without reasonable accommodation), [the Board] could not
      override the statutory hiring authority of the County Sheriff . . . . [2]

Aplt. App. at 235. As for M r. Bundy’s state-law claims, the district court simply

declined to exercise supplemental jurisdiction given the loss of the ADA claim to

summary judgment.

      On appeal, M r. Bundy argues that (1) the requirement that he provide a

return-to-w ork release was unrealistic, unnecessary, and in bad faith; (2) his

requests for accommodation were ignored; (3) there was no evidence that his

absence from work was indefinite; (4) he “was undisputably qualified for the



2
      W hile a board of county commissioners may set the salaries of the
employees and deputies necessary to discharge the functions of the county, only
elected county officials, including sheriffs, have the authority to hire persons
necessary to carry out the officials’ duties. See N.M . Stat. § 4-38-19(A ); N.M .
Const. art. X, §§ 2(A) & (B).

                                          -5-
dispatcher position, and . . . positions were available,” Aplt. Br. at 28; and (5) he

could have been transferred into a dispatcher position because it would not have

infringed on the Sheriff’s crime-fighting duties.

                                     D ISCUSSION

                          I. Summary Judgment Standards

      W e review the district court’s summary judgment de novo. Stover v.

M artinez, 382 F.3d 1064, 1070 (10th Cir. 2004). Summary judgment is

appropriate if “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c). In applying this standard,

we view the evidence and draw all reasonable inferences in the light most

favorable to the party opposing summary judgment. See Stover, 382 F.3d at 1070.

                            II. Disability Discrimination

      The ADA requires an employer “to provide reasonable accommodations to

the known physical or mental limitations of an otherwise qualified” employee

with a disability. Bristol v. Bd. of County Com m’rs, 312 F.3d 1213, 1217

(10th Cir. 2002) (quotation omitted). To survive summary judgment in a

failure-to-accommodate case involving a request for reassignment, the employee

must first establish a prima facie case by showing that (1) he “is a disabled person

within the meaning of the ADA and has made any resulting limitations from

                                          -6-
his . . . disability known to the employer”; (2) “[t]he preferred option of

accommodation within the employee’s existing job cannot reasonably be

accomplished”; (3) he “requested the employer reasonably to accommodate his

. . . disability by reassignment to a vacant position”; (4) he was qualified, with or

without reasonable accommodation, to perform the essential functions of the

desired job; and (5) the employer did not offer reassignment. Smith v. M idland

Brake, Inc., 180 F.3d 1154, 1179 (10th Cir. 1999). If the employee meets this

burden, the employer must then “present evidence either (1) conclusively

rebutting one or more elements of [the] prima facie case or (2) establishing an

affirmative defense.” Id. Finally, “if the employer does either of the above,

summary judgment will be appropriate for the employer unless the employee then

presents evidence establishing a genuine dispute regarding the affirmative

defenses and/or rehabilitating any challenged elements of [the] prima facie case.”

Id.

      W e conclude that M r. Bundy, by failing to respond to the repeated requests

for documentation concerning his ability to return to work, never triggered the

Board’s duty to consider reassignment. Reassignment is an option to be

considered only after other efforts at accommodation within the employee’s

existing job have failed. Id. at 1170-71; see also Davoll v. Webb, 194 F.3d 1116,

1132 n.8 (10th Cir. 1999) (“In general, an employee requiring a reasonable

accommodation will need to initiate the interactive process by notifying the

                                          -7-
employer of his disability and resulting limitations, and requesting reassignment

if no reasonable accommodation is possible in the employee’s exiting job.”).

M oreover, M r. Bundy’s requested accommodation of reassignment to a dispatcher

position was not reasonable, given that it was not within the Board’s authority.

      Accordingly, we AFFIRM for substantially the same reasons given by the

district court in granting the Board summary judgment. 3

                                                    Entered for the Court


                                                    M onroe G. M cKay
                                                    Circuit Judge




3
       To the extent that the district court found that Nunez’s and Riggs’ requests
for work releases concerned M r. Bundy’s ability to resume work in any capacity,
rather than just his ability to return to the Detention Center, we conclude that the
district court misconstrued the evidence. The totality of the evidence is not
definitive one way or the other. Nevertheless, there is no dispute that M r. Bundy
failed to provide any information about when he could resume any sort of work or
what the limitations from his disability were. W ithout such information, the
Board could not determine whether a reasonable accommodation could be made at
the D etention Center.

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