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

                            FOR THE TENTH CIRCUIT                             March 18, 2013
                        _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
SCOTT WEHRLEY,

             Plaintiff - Appellant,

v.                                                           No. 12-1079
                                                (D.C. No. 1:10-CV-01567-PAB-BNB)
AMERICAN FAMILY MUTUAL
INSURANCE COMPANY,

             Defendant - Appellee.
                       _________________________________

                                     ORDER
                        _________________________________

Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.
                  _________________________________

      This matter is before the court as a follow up to our order dated January 24, 2013

withdrawing the court’s previous Order & Judgment, and in addition on the appellant’s

Petition For Panel Rehearing and Rehearing En Banc. We also reviewed the appellee’s

response to the request for rehearing, which was filed on January 30.

      Upon consideration, we grant panel rehearing in part, and direct the clerk of court

to issue the Order & Judgment attached to this order as the new decision of the court.

Beyond the amendments included in our new decision, the request for panel rehearing is

denied.
       The new Order & Judgment, as well as the petition for en banc rehearing and the

response, were circulated to all the judges of the court who are in regular active service.

As no judge called for a poll, the petition for en banc consideration is denied.


                                              Entered for the Court



                                              ELISABETH A. SHUMAKER, Clerk




                                                 2
                                                                    FILED
                                                        United States Court of Appeals
                         UNITED STATES COURT OF APPEALS         Tenth Circuit

                                    TENTH CIRCUIT                              March 18, 2013
                           ___________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
SCOTT WEHRLEY,

              Plaintiff-Appellant,
       v.                                                         No. 12-1079
AMERICAN FAMILY MUTUAL                          (D.C. No. 1:10-CV-01567-PAB-BNB)
INSURANCE COMPANY,                                              (D. Colo.)

              Defendant-Appellee.
                        ___________________________________
                               ORDER AND JUDGMENT*
                          ____________________________________

       Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.
                     ____________________________________


              Plaintiff Scott Wehrley worked as a field claim adjuster for Defendant

American Family Mutual Insurance Company. While investigating a roof claim in 2007,

he fell from a ladder and injured his knee and back. He quickly returned to work, where

Defendant allowed him to stay off ladders.        Although a doctor removed all work

restrictions six months after the fall, Plaintiff challenged this determination and obtained

medical restrictions from roof-related claims.          Defendant accommodated these

restrictions for a time, but finally told Plaintiff his job would be in jeopardy if he could

not return to roof claims. Defendant then terminated Plaintiff’s employment, more than a


       *
         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.
year after the initial accident. Plaintiff filed this suit, raising several federal and state-law

claims. The district court granted Defendant summary judgment. Plaintiff appealed.

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

                                                   I.

       Plaintiff began working for Defendant in 1999, and took a position as a property

claim field senior adjuster in 2006. His duties in that position included, among other

things, on-site property inspections. The position’s job description said the job required

“the ability to work in high, precarious places between 1 and 33% of the time,” “the

ability to climb or balance between 1 and 33% of the time,” and “the ability to stoop,

kneel, crouch or crawl between 1 and 33% of the time.” Appellant’s App., vol. I at 97–

98. It went on: “The information in this job description is intended to describe the

essential job functions required of those assigned to this job.” Id. at 98. In the unit in

which Plaintiff worked, about fifty-seven percent of claims were roof-related claims. Id.,

vol. IV at 418.

       In June 2007, Plaintiff fell from a ladder while inspecting a roof and injured his

knee and lower back. He filed a workers’ compensation claim, and his supervisor, Jeff

Bourcy, assigned him to desk work until he could walk. Upon his return to work,

Plaintiff informed Bourcy that he had “extensive experience and skills sets in all areas of

processing insurance claims” and could do any type of work Defendant needed him to.

Id., vol. I. at 143. After Plaintiff was off crutches, Bourcy began assigning him to field

claims that did not involve roofs or ladders. In December 2007, Defendant’s workers’

compensation doctor determined that Plaintiff had reached maximum medical

                                                   2
improvement and removed all Plaintiff’s work restrictions.          Plaintiff nevertheless

requested an independent medical examination.          The doctor who conducted this

examination in April 2008 concluded Plaintiff should avoid kneeling or crawling when

possible, but that some kneeling and crawling would be acceptable.           Bourcy then

reassigned Plaintiff to roof claims, but Plaintiff quickly obtained ladder and roof

restrictions from the worker’s compensation doctor. In July 2008, that doctor determined

Plaintiff needed knee surgery and placed Plaintiff on permanent work restrictions.

      On July 21, 2008, Plaintiff discussed with Bourcy his need for surgery and

informed him he had surgery scheduled for July 30. Bourcy assured Plaintiff he was

doing his job well, and Plaintiff reiterated that he was willing and able to do any type of

insurance work that Defendant needed him to do. Bourcy followed up that conversation

with an email referring Plaintiff to Defendant’s Family and Medical Leave Act (FMLA)

coordinator “to discuss FMLA possibilities as soon as you can.” Id., vol. II at 313.

When Defendant’s workers’ compensation insurer, Sentry, declined to cover the surgery,

Plaintiff postponed the surgery and challenged Sentry’s denial of coverage. Bourcy

advised Plaintiff to have his personal insurer cover the surgery. Bourcy asked on August

6, 2008, whether Plaintiff had filed for FMLA leave. Plaintiff said he planned to apply

for FMLA once the surgery was scheduled, but that he was waiting to hear back from his

insurance company. Bourcy told Plaintiff this course of action was reasonable.

      On August 22, 2008, Bourcy told Plaintiff that if he did not perform roof claims,

his job could be in jeopardy. Bourcy said climbing roofs was an important part of the job

and Plaintiff’s failure to perform roof claims increased the work for other adjusters. On

                                                3
August 28, 2008, Bourcy again asked Plaintiff if he had received a response from his

personal insurance company or if he had applied for FMLA leave. Plaintiff responded no

to both questions. Bourcy then terminated Plaintiff’s employment, citing his inability to

perform roof inspections. Plaintiff asked if there were “any other job positions posted

that I could have,” and Bourcy replied that he had not seen any that day. Id., vol. I at

144. An Employee Relations Specialist with Defendant, Kristy Ledgerwood, indicated

that she checked Defendant’s open positions at the time. She did not find any open

positions in the Denver care center. Ledgerwood did not remember whether she checked

for open desk positions in other areas, such as casualty or automobile claims. Plaintiff

introduced a list of Defendant’s job postings from the time surrounding his firing. That

list includes positions for which Plaintiff asserts he was qualified, such as a “Casualty

Claim Desk Adjuster” in Denver posted on August 12, 2008.              Id., vol. II at 171.

Plaintiff’s termination letter said, “You are not eligible for rehire consideration at

American Family Insurance.”1 Id., vol. II at 309. Sometime after Plaintiff’s firing,

Sentry agreed to cover his surgery.

       Plaintiff filed this suit in state court, and Defendant removed it to federal court.

       1
          Defendant claims it was willing to rehire Plaintiff, relying on a printout of its
electronic separation form. That form has a box checked next to “No” after the question
“Would you rehire?” Appellant’s App., vol. III at 335. But in the “Comments” window
below, Bourcy wrote, “I would reccomend [sic] re-hire if it were for inside position, not
requiring ladder/roof work.” Id. at 336. Because Plaintiff has introduced his termination
letter, which directly rebuts Defendant’s evidence, Plaintiff has created a factual dispute.
On appeal from summary judgment, we must resolve all factual disputes in the light most
favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007).
Consequently, we must assume Defendant was unwilling to rehire Plaintiff to any other
position.

                                                4
The Second Amended Complaint asserted (1) discrimination in violation of the

Americans with Disabilities Act (ADA), (2) violation of Colorado public policy, (3)

retaliation under the FMLA, and (4) retaliation under the ADA. On Defendant’s motion,

the district court granted summary judgment in Defendant’s favor on all four claims.

Plaintiff now appeals. We initially entered an order and judgment affirming the district

court. As to Plaintiff’s ADA discrimination claim, the district court held that Plaintiff

was not substantially impaired in any major life activity. We affirmed on the alternative

basis that Plaintiff had failed to introduce sufficient facts showing he was able to perform

the essential functions of his job. We stopped short of discussing whether Plaintiff was

eligible for reassignment to another position in Defendant’s employ.

       Plaintiff then sought panel rehearing and rehearing en banc, pointing to our

decision in Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999) (en banc), a

decision he did not cite in his opening brief and only discussed perfunctorily in his reply

brief. Midland Brake indicates that our initial decision was at least incomplete, and

perhaps wrong. Under Midland Brake, we must consider not only whether an employee

is qualified to perform the essential functions of his current job, but also whether he is

qualified to perform the essential functions of “an available reassignment job within the

company.” Midland Brake, 180 F.3d at 1161. In light of Midland Brake, we grant the

petition for panel rehearing, and issue this amended opinion. Rather than decide whether

Plaintiff was entitled to reassignment, we will take the same tack as the district court and

ask whether Plaintiff was disabled under the ADA. We review the district court’s grant

of summary judgment on all Plaintiff’s claims de novo, and view the evidence in the light

                                                5
most favorable to the non-moving party. Robert v. Bd. of Cnty. Comm’rs, 691 F.3d

1211, 1216 (10th Cir. 2012).

                                                II.

       We turn first to Plaintiff’s ADA discrimination claim.         The ADA prohibits

covered employers from discriminating against “a qualified individual on the basis of

disability.” 42 U.S.C. § 12112(a). ADA discrimination claims follow the familiar

burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

To establish a prima facie case of discrimination, Plaintiff must show (1) he was disabled,

(2) he was qualified, with or without reasonable accommodation, to perform the essential

functions of his job, and (3) his employer discriminated against him because of his

disability. Robert, 691 F.3d at 1216.

       Under the ADA, a person is disabled if he (1) has a physical or mental impairment

that substantially limits one or more of his major life activities, (2) has a record of such

an impairment, or (3) is regarded by his employer as having such an impairment. 42

U.S.C. § 12102(1). Plaintiff claims his knee and back injuries were a qualifying physical

impairment. We follow a three-step process to determine whether an impairment exists.

Plaintiff must (1) show he has a recognized impairment, (2) identify one or more

appropriate major life activities, and (3) show that the impairment substantially limits one

or more of those activities. Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1129

(10th Cir. 2003). The parties appear to agree that Plaintiff’s knee injury, at least, is a

recognized impairment. But they dispute whether Plaintiff was substantially impaired in

any major life activity.

                                                6
         Before we can answer this question, we must clarify what statutory scheme

applies. In 2008, Congress passed the ADA Amendments Act, Pub. L. No. 110-325, 122

Stat. 3553, which had a stated purpose of superseding a number of Supreme Court cases.

The Amendments Act also created a statutory definition of “major life activities.” See 42

U.S.C. § 12102(2)(A). But the Act did not take effect until January 1, 2009, which is

after the alleged discrimination in this case. We have held that the Amendments Act does

not apply retroactively, so we must apply the law as it stood in 2008, when Defendant

fired Plaintiff. Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1144 (10th Cir.

2011).

         The pre-2009 version of the ADA did not define “major life activity,” but the

Department of Labor regulations defined the term as including “functions such as caring

for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working.”       29 C.F.R. § 1630.2(i) (2008 version).       Prior to the ADA

Amendments Act, the Supreme Court said the phrase “major life activity” needed to be

“interpreted strictly to create a demanding standard for qualifying as disabled.” Toyota

Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002), superseded by statute ADA

Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553. Accordingly, the Court

said “major life activities” referred to “those activities that are of central importance to

daily life.” Id. Under this standard, Plaintiff has failed to raise a dispute of material fact

regarding his disability.

         Plaintiff argues he was impaired in the following activities: squatting, lifting more

than twenty-five pounds on a regular basis, kneeling, crawling, climbing ladders, working

                                                  7
at unprotected heights, prolonged walking, sleeping, sitting or standing for more than

thirty minutes at a time; household tasks such as gardening, painting, changing light

bulbs; and cleaning high and low areas like gutter drains, the garage, the basement, the

bathtub, and under low pieces of furniture. He is also unable to engage in recreational

activities such as skiing, waterskiing, golfing, camping, hiking, and fishing. Most of

these activities are not of central importance to daily life, but at least some of them are.

For example, walking is one of the activities listed in the regulations. We would also

venture that sleeping, sitting, and standing are central to daily life.2 We have also said

“personal and household chores” are major life activities, Carter, 662 F.3d at 1143, but

we did so in the context of chores such as cooking food and doing laundry, id. at 1139.

Unlike cooking and washing clothes, cleaning one’s gutters or bathtub is not central to

daily life.   But Plaintiff has identified four activities that we agree are major life

activities: walking, sleeping, sitting, and standing.

       The next question is whether Plaintiff was substantially impaired in any of these

activities when he was fired.        The 2008 Department of Labor regulations defined

“substantially limit[ed]” as being

              (i) Unable to perform a major life activity that the average person in
       the general population can perform; or

             (ii) Significantly restricted as to the condition, manner or duration
       under which an individual can perform a particular major life activity as
       compared to the condition, manner, or duration under which the average
       person in the general population can perform that same major life activity.


       2
         In the ADA Amendments Act, Congress added sleeping and standing to its list of
major life activities. See 42 U.S.C. §12102(2)(A).
                                                  8
       29 C.F.R. § 1630.2(j)(1) (2008).        Plaintiff submitted an independent medical

examination by Dr. Linda Mitchell conducted in February 2010. Dr. Mitchell noted that

“prolonged walking or standing” made Plaintiff’s knee pain “worse.” Appellant’s App.,

vol. II at 192. She noted, “He is worse with prolonged sitting or standing and has to

change positions about every 30 minutes.” Id. Plaintiff also submitted a report by a

rehabilitation counselor, Helen Woodard, completed in January 2011. Under the heading

“current status,” the report notes that Plaintiff “has difficulty walking very far and pain

disrupts his sleep.” Id. at 275. The report opines that his injuries caused “disabilities that

result in substantial limitations that affect [Plaintiff’s] ability to do one or more major life

activities.” Id. at 277. Specifically, the report noted “limitations” in lifting, squatting,

kneeling, crawling, climbing, working on ladders or at unprotected heights and that his

disabilities “affect his ability” to do household activities such as cleaning. Id. Plaintiff’s

own affidavit says the limitations detailed in these two documents “were in effect and as

severe in July and August of 2008 as they were at the time the reports were prepared.”

Id. at 168.

       This evidence does not show Plaintiff was “unable” to perform any major life

activities, so we must consider whether he was “significantly restricted” in the manner or

duration of performing those activities. See 29 C.F.R. § 1630.2(j)(1) (2008). As to

walking and standing, the medical report said only that prolonged walking or standing

caused Plaintiff knee pain. It does not say the injury restricted Plaintiff’s ability to walk

or stand in the ordinary course of a day. As to sleeping, the report only indicates that

pain “disrupts” or “impacts” Plaintiff’s sleep. Id. at 275, 277. It says nothing about the

                                                   9
extent or severity of the impact on his sleep. See Johnson v. Weld Cnty., Colo., 594 F.3d

1202, 1218 n.10 (10th Cir. 2010) (plaintiff had not shown sleeping trouble made her

disabled under the ADA where she did not show how her sleeping problems compared to

the average person in the general population “many of whom, of course, have . . . trouble

sleeping”). Finally, the fact that Plaintiff has to change positions every thirty minutes

while sitting is not a substantial limitation, considering how few daily activities require

prolonged sitting in one position. In short, Plaintiff has not introduced enough evidence

to overcome summary judgment on the issue of whether he was substantially impaired in

a major life activity. So he has not satisfied the first element of a prima facie case of

ADA discrimination.

                                               III.

      We next address Plaintiff’s ADA retaliation claim. The ADA prohibits both

“discriminat[ing] against any individual because such individual has opposed any act or

practice made unlawful by this chapter” and “interfer[ing] with any individual in the

exercise or enjoyment of . . . any right granted or protected by this chapter.” 42 U.S.C.

§ 12203(a), (b). In the absence of direct evidence of retaliation, a plaintiff may make out

an ADA retaliation claim under the McDonnell Douglas burden-shifting framework. A

prima facie case requires Plaintiff to show (1) he engaged in protected activity, (2) a

reasonable employee would have found the challenged action materially adverse, and (3)

a causal connection existed between the protected activity and the material adverse

action. Reinhardt v. Albuquerque Public Schs. Bd. of Educ., 595 F.3d 1126, 1131 (10th

Cir. 2010). We have held that requests for reasonable accommodation are protected

                                               10
activity under the ADA.3 Jones v. U.P.S., Inc., 502 F.3d 1176, 1194 (10th Cir. 2007).

And, unlike an ADA discrimination suit, a plaintiff in an ADA retaliation suit need not

show he suffered from an actual disability as long as he had a “reasonable, good faith

belief the statute ha[d] been violated.” Selenke v. Medical Imaging of Colo., 248 F.3d

1249, 1264 (10th Cir. 2001). Here, the district court concluded Plaintiff had satisfied the

second two requirements of a prima facie case. But it concluded he had failed to meet the

first prong because “no reasonable jury could find that, in June 2007, [Plaintiff] had a

reasonable, good faith belief that simply because he could not descend a ladder he was

disabled within the meaning of the ADA.” Wehrley v. Am. Family Mut. Ins. Co., 2012

WL 415421, at *9 (D. Colo., Feb. 9, 2012). In the alternative, the court held Plaintiff

failed to show pretext for his termination.

       We can accept the court’s second holding, but not its first. Dr. Mitchell’s report

noted that “prolonged walking or standing” made Plaintiff’s knee pain “worse.”

Appellant’s App., vol. II at 192. Woodard’s report said Plaintiff “has difficulty walking

very far and pain disrupts his sleep,” and noted “limitations” in lifting, squatting,

kneeling, crawling, climbing, working on ladders or at unprotected heights and that

Plaintiff’s disabilities “affect his ability” to do household activities such as cleaning. Id.

at 275, 277. Plaintiff says he experienced these conditions at the time Defendant fired

him. This evidence is at least sufficient to create a factual issue regarding Plaintiff’s


       3
        To request reassignment, an employee need not use “magic words,” but must
“convey to the employer a desire to remain with the company despite his or her disability
and limitations.” Jones v. U.P.S., Inc., 502 F.3d 1176, 1194 n.13 (10th Cir. 2007)
(quoting Midland Brake, 180 F.3d at 1172).
                                                 11
good faith belief that he was disabled.

       The district court focused on the wrong time-frame in considering whether

Plaintiff believed he was disabled, looking at Plaintiff’s beliefs in June 2007 rather than

when he was terminated in August 2008. By the time Defendant fired him, Plaintiff had

been placed on work restrictions and was experiencing all the limitations outlined in Dr.

Mitchell and Ms. Woodard’s reports. Furthermore, the district court considered only

Plaintiff’s inability to descend a ladder and disregarded his other limitations, such as

limitations in walking long distances, lifting, squatting, kneeling, crawling, climbing, and

working at unprotected heights. Based on the evidence Plaintiff has presented, a jury

could conclude that Plaintiff reasonably believed he was disabled in August 2008.

       But the district court is correct that Plaintiff has failed to establish pretext.

Defendant says it fired Plaintiff for the non-discriminatory reason that he was unable to

perform an essential function of his job—roof inspections.4 Thus, the burden shifted

back to Plaintiff to show “such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer’s proffered legitimate reasons for its

action that a reasonable factfinder could rationally find them unworthy of credence.”

E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1052 (10th Cir. 2011).

       4
         Of course, Plaintiff has tried to persuade us this firing was discriminatory
because Defendant failed to reassign him to another position. But we have already
concluded Defendant did not discriminate against Plaintiff in violation of the ADA
because Plaintiff was not disabled. Furthermore, an employer’s failure to reassign an
employee is properly considered as part of an ADA discrimination claim not a retaliation
claim, where the relevant question is whether the employer’s “motive for taking the
adverse action was its desire to retaliate for the protected activity.” Proctor v. United
Parcel Service, 502 F.3d 1200, 1210–11 (10th Cir. 2007) (quoting Wells v. Colo. Dep’t
of Transp., 325 F.3d 1205, 1218 (10th Cir. 2003)).
                                                12
       Plaintiff cannot meet that burden here. He admits he was unable to perform roof

inspections in August 2008. But he points to several other facts which he says support

pretext.   First, another field claim adjuster submitted an affidavit asserting he was

unaware of any increased workload as a result of Plaintiff’s injury and had never heard

any other adjusters complain about Plaintiff’s inability to perform roof inspections.

Second, Plaintiff says “a comparison of the number of field assignments given to the

adjusters in [Plaintiff’s] territory before and after his injury indicates that the number of

assignments did not significantly increase and, in some cases, decreased after [Plaintiff’s]

injury.” Appellant’s Br. at 24. Third, Defendant only notified Plaintiff his job could be

in jeopardy a few days before his firing, and previously indicated he was doing a good

job. Fourth, Defendant made no effort to reassign Plaintiff, even though he expressed

willingness to work in other positions. And finally, Defendant told Plaintiff he was

ineligible for rehire.

       These facts are insufficient to show pretext. The other adjuster’s affidavit does

nothing to disprove Defendant’s assertion that performing roof inspections was an

essential function of the field claim adjuster position. Nor can we accept Plaintiff’s

assertion that the workload on other adjuster’s stayed level or decreased after his injury.

The only evidence Plaintiff introduces in support of this claim consists of two tables

showing the number of “property assignments” to field adjusters in Defendant’s northern

and southern Colorado regions. Appellant’s App., vol. IV at 423. But these tables are

only for 2008, even though Plaintiff’s injury occurred in June 2007. So these tables tell

us nothing about the effect of his injury on the other adjusters’ workload. Bourcy’s

                                                13
assurances to Plaintiff that he was doing a good job were perhaps misleading, if

Defendant indeed needed Plaintiff to return to roof claims. But they do not suggest

Defendant fired Plaintiff for asserting his ADA rights, rather than for his inability to

perform the functions of a field claims adjuster.

       Finally, Defendant’s failure to reassign Plaintiff to a different position and its

unwillingness to rehire him do not undermine Defendant’s asserted justification for the

firing. These facts might have been relevant to Plaintiff’s ADA discrimination claim if

we had concluded Plaintiff was disabled under the ADA. Employers have a duty, in

certain circumstances, to reassign a disabled employee to another vacant job within the

company. Midland Brake, 180 F.3d at 1171. But these facts do not suggest Defendant

fired Plaintiff for some reason other than his inability to do roof inspections. Because

Plaintiff cannot show pretext, Defendant was entitled to summary judgment on Plaintiff’s

ADA retaliation claim.

                                                IV.

       Plaintiff’s FMLA retaliation claim, like his ADA claims, is subject to the

McDonnell Douglas burden-shifting analysis. To make out a prima facie case, Plaintiff

must show (1) he engaged in a protected activity, (2) his employer took a materially

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

adverse action. Khalik v. United Air Lines, 671 F.3d 1188, 1193 (10th Cir. 2012). The

district court first held Plaintiff did not engage in protected activity because he never

actually took FMLA leave. In the alternative, the court held Plaintiff failed to establish a

causal connection between the protected activity and the firing.

                                                14
       In support of its first holding, the district court said, “Tenth Circuit law is unsettled

as to whether an employee must actually have taken FMLA leave as a prerequisite to a

retaliation claim.” Wehrley, 2012 WL 415421 at *14. The court cited our unpublished

decision in Wilkins v. Packerware Corp., 260 F. App’x 98, 103 (10th Cir. 2008)

(unpublished), where we said it was an open question whether “the lawful taking of

FLMA leave is a prerequisite to a retaliation claim.” But Wilkins only addressed whether

someone must actually be eligible for FMLA leave in order to bring a retaliation claim.

Id. Whether the plaintiff must actually take FMLA leave is a different question. Three

other circuits have concluded that notifying an employer of the intent to take FMLA

leave is protected activity. Pereda v. Brookdale Senior Living Communities, Inc., 666

F.3d 1269, 1276 n.8 (11th Cir. 2012); Erdman v. Nationwide Ins. Co., 582 F.3d 500, 509

(3d Cir. 2009); Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314 (6th Cir.

2001) (“The right to take . . . leave pursuant to the FMLA includes the right to declare an

intention to take such leave in the future.”).

       We are persuaded to follow these circuits for two reasons. First, the FMLA

requires an employee to provide his employer “not less than 30 days’ notice” before

taking leave for foreseeable medical treatment. 29 U.S.C. § 2612(e)(2). Because the

FMLA expressly requires this notice, giving such notice reasonably must be “protected

activity.” Second, any other view would lead to an absurd result—an employee would be

unprotected from retaliation during the thirty or more days prior to taking FMLA leave.

As the Third Circuit observed, this “would perversely allow a[n] employer to limit an

FMLA plaintiff’s theories of recovery by preemptively firing her.” Erdman, 582 F.3d at

                                                  15
509. We reject this absurd result and hold that giving an employer notice of intent to take

FMLA leave, at least where the employee qualifies for that leave, is protected activity for

purposes of an FMLA retaliation claim. So Plaintiff has satisfied the first element of a

prima facie case.

       We also must reject the district court’s alternative holding that Plaintiff failed to

show a causal connection between his protected activity and his firing. Plaintiff relies on

the temporal proximity between his statement of intent to take FMLA leave and his

firing. Temporal proximity can be “relevant evidence of a causal connection sufficient to

justify an inference of retaliatory motive.” Metzler v. Fed. Home Loan Bank of Topeka,

464 F.3d 1164, 1171 (10th Cir. 2006) (internal quotation marks omitted). “We have

emphasized, however, that a plaintiff may rely on temporal proximity alone only if ‘the

termination is very closely connected in time to the protected activity.’” Id. (quoting

Anderson v. Coors Brewing, 181 F.3d 1171, 1179 (10th Cir. 1999)). In Metzler, the

defendant terminated the plaintiff “at most about 6 weeks after [the defendant] knew [the

plaintiff] intended to engage in protected activity and within as little as four weeks of [the

plaintiff’s] request for FMLA-protected leave.” Id. at 1171–72. We said, “Because [the

plaintiff’s] termination was therefore ‘very closely connected in time’ to her protected

FMLA activity, she has established the third, and final, element of her prima facie case.”

Id. at 1172 (quoting Anderson, 181 F.3d at 1179) (internal citation omitted). Here,

Defendant fired Plaintiff only five weeks after he informed Bourcy he might take FMLA

leave. Under Metzler, this temporal connection alone is enough to satisfy the third

element of a prima facie case. Because the second element is not in dispute, Plaintiff has

                                                 16
met his initial burden under the McDonnell Douglas framework.

       The district court ended its analysis here, but we do not. We may affirm summary

judgment on any basis supported by the record. See Seegmiller v. LaVerkin City, 528

F.3d 762, 767 (10th Cir. 2008). Once Plaintiff makes out a prima facie case, Defendant

must offer a legitimate reason for terminating Plaintiff. Robert, 691 F.3d at 1219.

Defendant’s proffered reason—that Plaintiff could not fulfill an essential function of his

job—is legitimate. So the burden shifts back to Plaintiff to present evidence supporting

pretext. Id. As with his ADA retaliation claim, Plaintiff has not adduced sufficient facts

to establish pretext. None of the evidence suggests Defendant was opposed to Plaintiff

taking FMLA leave.        In fact, Bourcy encouraged Plaintiff to contact the FMLA

coordinator as soon as possible when his surgery was initially scheduled. Cf. Sabourin v.

University of Utah, 676 F.3d 950, 960 (10th Cir. 2012) (supervisor “exploded” when she

heard that employee took FMLA leave). Nor do Bourcy’s later inquiries regarding

whether Plaintiff had taken FMLA leave suggest pretext. Plaintiff had postponed his

surgery once, and Bourcy would naturally want to know if Plaintiff would be taking

FMLA leave any time soon. And Bourcy assured Plaintiff his actions at the time were

“reasonable.” So these facts do not establish pretext. Finally, Plaintiff’s ineligibility for

rehire is not enough to establish pretext in this case.          Although an employer’s

unwillingness to rehire an employee in a position for which he is qualified could suggest

pretext, it is not alone sufficient to show pretext. In short, even though Plaintiff had

informed Defendant of his intent to take FMLA leave, there is insufficient evidence for a

jury to find that Defendant fired Plaintiff because he intended to take FMLA leave.

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                                                V.

       We turn finally to Plaintiff’s state law claim, over which the district court

exercised supplemental jurisdiction. See 28 U.S.C. § 1367(a). Colorado courts have

implied a cause of action for retaliation for the exercise of workers’ compensation rights.

Lathrop v. Entenmann’s, Inc., 770 P.2d 1367, 1373 (Colo. Ct. App. 1989). “[S]ince an

employee is granted the specific right to apply for and receive compensation under the

[Workmen’s Compensation Act of Colorado], an employer’s retaliation against such an

employee for his exercise of such right violates Colorado’s public policy.” Lathrop, 770

P.2d at 1373. Colorado’s case law regarding this claim is not well developed, but the

claim at the very least requires evidence of a causal connection between the exercise of

worker’s compensation rights and the firing. See id. at 1372–73 (agreeing with a court

that recognized a common law claim “by an employee for wrongful discharge if the

employee is discharged in retaliation for pursuing a workmen’s compensation claim.”).

The district court concluded Plaintiff introduced insufficient evidence of this connection.

       Plaintiff points to several pieces of evidence that he thinks make the connection.

First, Plaintiff challenged the workers’ compensation doctor’s conclusions by requesting

an independent medical evaluation. Second, he repeatedly challenged Sentry’s decision

to deny him surgery. Third, only a two-month gap separated his request for surgery from

his termination. Fourth, Bourcy “pushed” Plaintiff to have his personal insurer cover the

surgery, rather than Sentry. And, fifth, Bourcy decided to fire Plaintiff after a conference

call that included the attorney involved in Plaintiff’s workers’ compensation claim.

       These facts are not sufficient to overcome summary judgment. The fact that

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Plaintiff disputed a number of workers’ compensation determinations over the nine-

month period leading up to his firing suggests a possible motive for retaliation, but it does

not undermine Defendant’s stated reason for terminating Plaintiff. Furthermore, Bourcy

did not “push” Plaintiff to have his personal insurer cover the surgery until after Sentry

denied coverage. So this evidence does not suggest Bourcy wanted to keep Sentry from

having to cover the surgery. At most, it indicates that Bourcy wanted Plaintiff to obtain

the surgery through other means once Sentry denied coverage. Finally, none of the

deposition testimony related to the conference call suggests that Plaintiff’s workers’

compensation claim had anything to do with his termination. The mere fact that an

attorney involved with that claim was on the phone is not enough to show causation. So

Defendant was entitled to summary judgment on this claim.

       AFFIRMED.

                                          Entered for the Court,



                                          Bobby R. Baldock
                                          United States Circuit Judge




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