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

                             FOR THE TENTH CIRCUIT                         February 27, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
DEBORAH L. WINSTON,

      Plaintiff - Appellant,

v.                                                          No. 17-8041
                                                   (D.C. No. 2:15-CV-00037-ABJ)
WILBUR L. ROSS, Secretary of the                              (D. Wyo.)
United States Department of Commerce,
in his official capacity,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MATHESON, BACHARACH, and PHILLIPS, Circuit Judges.
                  _________________________________

      Deborah L. Winston sued her former employer, the National Weather Service

(NWS), an agency of the United States Department of Commerce, under the

Americans with Disabilities Act (ADA) and the Rehabilitation Act for discrimination

on the basis of disability and for unlawful retaliation. She appeals the district court’s

grant of summary judgment in favor of NWS. We exercise jurisdiction under

28 U.S.C. § 1291, and affirm.

      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                 I. BACKGROUND

                                  A. Factual History

      Ms. Winston began working for NWS as an administrative support assistant in

April 2010.1 Sometime in 2011, she informed her supervisor that she had been

diagnosed with Hashimoto’s thyroiditis, an autoimmune disease. Its symptoms

include poor concentration and memory, fatigue, digestive issues, muscle aches,

tenderness, stiffness, swelling and pain in the joints, depression, and frequent

illnesses. Her symptoms and several personal events (including the deaths of her

parents, a surgery, a broken arm, and a forced relocation) caused her to exhaust

nearly all of her sick leave during 2011. Between April 2010 and January 2012, she

used 176 hours of sick leave and 268.25 hours of annual and other leave. As a result,

her supervisor placed her on “leave restriction” for one year, during which she was

required to obtain prior approval for all absences and submit a doctor’s note for

health-related absences. Aplt. App., Vol. 1 at 125. No leave would be advanced.

The leave-restriction notice stated, “Attendance at work is an essential function of

your position.” Id. at 124.

      In April 2012, Ms. Winston took some leave under the Family Medical Leave

Act (FMLA). The following month she learned that NWS had approved her

participation in the voluntary leave transfer program for one year beginning in

March 2012. The program allows federal employees to donate annual leave when

      1
        Because we are reviewing the grant of summary judgment in favor of NWS,
we recite the facts in the light most favorable to Ms. Winston. See Gonzales v. City
of Albuquerque, 701 F.3d 1267, 1271 (10th Cir. 2012).
                                           2
another employee needs additional leave for a medical emergency. See 5 U.S.C.

§ 6332.

      In September 2012, NWS formally granted Ms. Winston’s request for a

flexible work schedule between 9 a.m. and 5:30 p.m., with core hours from 9:30 a.m.

to 3:30 p.m. NWS denied her request to telework two days per week, noting that

critical elements of her position, such as serving as the receptionist and routing

telephone calls and visitors, could not be performed from home. NWS also denied

Ms. Winston’s request for intermittent time off to deal with flare-ups of her medical

condition because “unscheduled leave without any notice is not a reasonable

accommodation.” Aplt. App., Vol. 1 at 81. NWS agreed, however, to consider

granting leave without pay for flare-ups when she did not have enough accrued leave

and when it was administratively feasible. NWS also denied Ms. Winston’s later

request to work from home for two hours per day.

      In November 2012, Ms. Winston received a letter of caution from her

supervisor outlining mistakes she had made on time and attendance records. She

responded by filing a grievance with her union, asserting that she made the mistakes

because of her medical condition and that the leave restriction prevented her from

taking necessary leave. The grievance was granted the following month, and NWS

rescinded the leave-restriction notice and the letter of caution.

      In April 2013, an acting supervisor agreed to advance Ms. Winston sick leave,

but she did not receive her full pay for the pay period. She later discovered that her



                                            3
regular supervisor had intervened by withdrawing the advanced sick leave and

changing it to leave without pay, lowering the pay she received.

      In June 2013, Ms. Winston filed a complaint with the Equal Employment

Opportunity (EEO) office because her participation in the leave transfer program had

ended. The district court found that the outcome of the complaint was unclear, and

Ms. Winston has not clarified the matter in briefs to this court.

      In July 2013, Ms. Winston requested a three-day-per-week work schedule

because she was taking new medications and had been diagnosed with chronic

immune deficiency syndrome. NWS approved the request for a 90-day period

beginning in August. Ms. Winston’s attendance diminished significantly over the

ensuing months. By the end of October, she had ceased working and informed her

supervisors that she planned to apply for disability retirement. The 90-day period

expired in November, and Ms. Winston did not return to work or make any additional

requests for accommodations.

      In February 2014, Ms. Winston filed another EEO complaint. The district

court again found the outcome of this complaint was unclear, and Ms. Winston again

has not clarified the matter in her briefs to this court. She successfully applied for

disability retirement in September, and her termination from NWS became effective

in October.




                                            4
                                B. Procedural History

      Ms. Winston’s lawsuit asserted that (1) NWS discriminated against her by

failing to provide reasonable accommodations for her disability, and (2) it retaliated

against her on several occasions for requesting reasonable accommodations.

      NWS moved for summary judgment, and the district court granted the motion.

On the discrimination claim, the court determined that Ms. Winston failed to

establish a prima facie case because she did not “present a reasonable

accommodation that would enable her to maintain regular attendance and perform the

essential functions of her position.” Aplt. App., Vol. 3 at 491. On her retaliation

claims, the court also determined that Ms. Winston failed to establish a prima facie

case. Two of her retaliation claims failed because she had not shown her protected

activity caused the alleged retaliatory conduct. The remaining retaliation claims

failed because the incidents she alleged did not amount to NWS taking adverse

employment action.

                                  II. DISCUSSION

      We review de novo the district court’s grant of summary judgment, applying

the same standard as the district court. See Adamson v. Multi Cmty. Diversified

Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008). “The court shall grant summary

judgment if the movant shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

We view the facts in the light most favorable to Ms. Winston and draw all reasonable

inferences in her favor, see Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir.

                                           5
2013), but “unsupported conclusory allegations do not create a genuine issue of fact,”

EEOC v. C.R. England, Inc., 644 F.3d 1028, 1037 (10th Cir. 2011) (brackets and

internal quotation marks omitted).

                         A. Disability Discrimination Claim

      Ms. Winston brought her disability discrimination claim under the ADA and

the Rehabilitation Act. The standards for employment discrimination are the same

under both. 29 U.S.C. § 794(d); see Woodman v. Runyon, 132 F.3d 1330, 1339 n.8

(10th Cir. 1997) (“Cases decided under section 504 of the Rehabilitation Act are . . .

applicable to cases brought under the ADA and vice versa, except to the extent the

ADA expressly states otherwise.”). The ADA prohibits discrimination against “a

qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). To establish a

prima facie claim Ms. Winston must establish that “(1) she is disabled within the

meaning of the ADA; (2) she is qualified, with or without reasonable

accommodation, to perform the essential functions of the job held or desired; and

(3) she was discriminated against because of her disability.” Mason v. Avaya

Commc’ns, Inc., 357 F.3d 1114, 1118 (10th Cir. 2004).

      Ms. Winston argues the district court erred by concluding that no genuine

issue of material fact existed on the second element. To establish that she is qualified

under the ADA, Ms. Winston must show she “can perform the essential functions of

the job” with or without any reasonable accommodation. Id. (internal quotation

marks omitted). “Essential functions are the fundamental job duties of the

employment position,” and “[w]e will not second guess the employer’s judgment

                                           6
when its description [of those duties] is job-related, uniformly enforced, and

consistent with business necessity.” Id. at 1119 (internal quotation marks omitted).

      Ms. Winston’s job required physical attendance. See id. She does not dispute

that attendance was an essential function of her job, but she contends that her

participation in the leave transfer program was “a necessary accommodation for her

disability which enabled her to work.” Aplt. Br. at 29. But even if participation in

the program allowed Ms. Winston to be absent from work, it does not follow that

such participation ensured she could perform the essential functions of her job,

including physical attendance. Her request to keep using leave donated by other

employees would allow her to be away from work for health reasons, but it would not

enable her to fulfill the essential function of physical attendance.

      This is so here because Ms. Winston provided no evidence as to when she

expected her medical condition to improve to the point where she would be able to

perform the essential functions of her job. “Without an expected duration of an

impairment, an employer cannot determine whether an employee will be able to

perform the essential functions of the job in the near future and therefore whether the

leave request is a ‘reasonable’ accommodation.” Cisneros v. Wilson, 226 F.3d 1113,

1130 (10th Cir. 2000), overruled on other grounds by Bd. of Trs. of Univ. of Ala. v.

Garrett, 531 U.S. 356 (2001). The district court did not err by granting summary

judgment in NWS’s favor on this claim.




                                            7
                                B. Retaliation Claim

      “[T]o establish a prima facie case of retaliation under the ADA, [the

employee] must demonstrate (1) that [she] engaged in protected opposition to

discrimination, (2) that a reasonable employee would have found the challenged

action materially adverse, and (3) that a causal connection existed between the

protected activity and the materially adverse action.” C.R. England, 644 F.3d at 1051

(internal quotation marks omitted).

      As discussed below, two alleged retaliatory actions—the January 2012 leave

restriction and the April 2013 revocation of advanced sick leave—lack an adequate

causal connection to protected activity. The remaining retaliatory incidents

Ms. Winston alleged do not amount to material adverse actions.

1. Lack of Causal Connection

      A plaintiff can satisfy the third element by adducing “evidence of

circumstances that justify an inference of retaliatory motive, such as protected

conduct closely followed by adverse action.” Id. (internal quotation marks omitted).

In addition, “a plaintiff must show an adequate request for an accommodation

sufficient to qualify as protected activity.” Foster v. Mountain Coal Co., 830 F.3d

1178, 1187 (10th Cir. 2016). “[B]efore an employer’s duty to provide reasonable

accommodations . . . is triggered under the ADA, the employee must make an

adequate request,” making clear that she wants assistance for her disability. C.R.

England, 644 F.3d at 1049; see also Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d

1130, 1135 (7th Cir. 1996) (“An accommodation is something concrete—some

                                           8
specific action required of the employer.”). “The request for accommodation must be

sufficiently direct and specific, giving notice that [the employee] needs a special

accommodation.” C.R. England, 644 F.3d at 1049 (internal quotation marks

omitted).

      a. Leave restriction

      The district court found that Ms. Winston did not “cite any evidence in support

of her statement that she requested accommodations in October, November, and

December 2011” and that the first accommodation she requested was FMLA leave in

April 2012. Aplt. App., Vol. 3 at 473. The court concluded she therefore failed to

establish a causal connection between any protected activity and NWS’s placing her

on leave restriction in January 2012. See Jones v. United Parcel Serv., Inc., 502 F.3d

1176, 1195 (10th Cir. 2007) (“Unless an employer knows that an employee is

engaging in protected activity, it cannot retaliate against that employee because of

the protected conduct, as required by statute.”).

      Ms. Winston contends this was error, citing her answer to an interrogatory

stating that in 2011, she “had conversations with” her supervisor about her medical

condition and “explained to him that . . . sick leave was necessary to enable [her] to

work.” Aplt. App., Vol. 3 at 423. In the same answer, she also stated that in

December 2011 she contacted the NWS regional office to inquire about her ability to

take sick leave and that when her supervisor gave her the leave-restriction notice he

told her “that he issued it because [she] had contacted the Regional Office.” Id.



                                           9
      This evidence does not establish that Ms. Winston made a specific request for

any accommodation before she was placed on leave restriction. Although she alleges

she informed her supervisor about her medical condition, she fails to cite any

evidence that she informed NWS of her desire for accommodations. Further,

Ms. Winston does not point to having requested any accommodation in 2011 that

would have enabled her to attend her job. “[T]he term reasonable accommodation

refers to those accommodations which presently, or in the near future, enable the

employee to perform the essential functions of [her] job.” Hudson v. MCI

Telecomms. Corp., 87 F.3d 1167, 1169 (10th Cir. 1996) (internal quotation marks

omitted). We therefore agree there is no genuine issue regarding a causal connection

between Ms. Winston’s inquiries during 2011 and the leave restriction.

      b. Advanced sick leave revocation

      Ms. Winston argues that the district court erred by determining that she failed

to establish a causal connection between her protected activity and her receiving less

pay than she expected for a pay period in April 2013. According to Ms. Winston, an

acting supervisor had approved advanced sick leave so she could receive her full pay

for the pay period, but her regular supervisor then revoked that approval without

informing her in advance. Ms. Winston does not dispute the district court’s finding

that her most recent protected activity before this pay incident was filing a grievance

with the union in November 2012.

      Ms. Winston has not shown a causal connection between these events. “A

retaliatory motive may be inferred when an adverse action closely follows protected

                                          10
activity. However, unless the [adverse action] is very closely connected in time to

the protected activity, the plaintiff must rely on additional evidence beyond temporal

proximity to establish causation.” Anderson v. Coors Brewing Co., 181 F.3d 1171,

1179 (10th Cir. 1999) (citation omitted). We have held that without additional

evidence, protected activity is not entitled to a presumption of causation when four

months have elapsed between the action and the alleged retaliation, see Proctor v.

United Parcel Serv., 502 F.3d 1200, 1208 (10th Cir. 2007), or even three months, see

Piercy v. Maketa, 480 F.3d 1192, 1198 (10th Cir. 2007). Here we have five.

Ms. Winston fails to cite any evidence beyond temporal proximity that would

establish a causal connection between her protected activity and the pay incident.

Accordingly, there is no genuine issue of material fact as to this causation element of

Ms. Winston’s prima facie case of discrimination.

2. Materially Adverse Action

      To establish the second element of a retaliation claim, a plaintiff must show

that the employer’s action “well might have dissuaded a reasonable worker from

making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co.

v. White, 548 U.S. 53, 68 (2006) (internal quotation marks omitted). Burlington

Northern recognized a different standard than some courts had been applying. See

Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1202 n.2 (10th Cir.

2006) (noting the Supreme Court’s rejection in Burlington Northern of the

adverse-employment-action standard).



                                          11
      Although the district court cited Burlington Northern, Ms. Winston argues the

court erred because it relied on earlier cases that required the plaintiff to make a more

demanding showing than Burlington Northern requires. See, e.g., Medina v. Income

Support Div., 413 F.3d 1131, 1137 (10th Cir. 2005) (holding that a reprimand

constitutes an adverse employment action only “if it adversely affects the terms and

conditions of the plaintiff’s employment”); Sanchez v. Denver Pub. Sch., 164 F.3d

527, 533 (10th Cir. 1998) (holding that “unsubstantiated oral reprimands and

unnecessary derogatory comments . . . are not included within the definition of

adverse action absent evidence that they had some impact on the employee’s

employment status”) (internal quotation marks omitted). As we explain below,

however, the other incidents that Ms. Winston alleged were retaliatory do not pass

muster under Burlington Northern.

      Ms. Winston alleged as incidents of retaliation the performance evaluation she

received in October 2012, the initial denial of her request for time off to vote that

same month, the letter of caution she received in November 2012, the repeated

requests for a doctor’s note she received when she sought to use sick leave, and the

added scrutiny and criticism of her work that persisted while she worked for NWS.

But the record does not support Ms. Winston’s characterization of these incidents as

materially adverse. In Burlington Northern, the Supreme Court distinguished

“material adversity” from “trivial harms,” stating that “a plaintiff must show that a

reasonable employee would have found the challenged action materially adverse,

which in this context means it might well have dissuaded a reasonable worker from

                                           12
making or supporting a charge of discrimination.” 548 U.S. at 68 (internal quotation

marks omitted).

      The record shows that Ms. Winston’s performance evaluation was generally

positive, she ultimately received time off to vote, and the letter of caution was

premised on mistakes she admitted to having made. Ms. Winston has not shown that

NWS’s requiring a doctor’s note for sick leave or that exercising additional scrutiny

of her performance amounted to materially adverse action. She therefore has not

shown that these incidents would deter a reasonable employee from complaining

about discrimination. See id. (“[N]ormally petty slights, minor annoyances, and

simple lack of good manners will not create such deterrence.”). Although

Ms. Winston is correct that the Burlington Northern standard for retaliation

superseded the standard in some of the cases the district court relied on, she cannot

show under Burlington Northern that these incidents were materially adverse to

support her retaliation claims.

                                  III. CONCLUSION

      We affirm the district court’s judgment in favor of NWS.


                                            Entered for the Court


                                            Scott M. Matheson, Jr.
                                            Circuit Judge




                                           13
