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

                             FOR THE TENTH CIRCUIT                             July 14, 2020
                         _________________________________
                                                                          Christopher M. Wolpert
                                                                              Clerk of Court
 DANAH LEE BETHSCHEIDER,

       Plaintiff - Appellant,

 v.                                                         No. 19-3243
                                                    (D.C. No. 5:16-CV-04006-CM)
 WESTAR ENERGY,                                               (D. Kan.)

       Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HOLMES, KELLY, and BACHARACH, Circuit Judges.
                  _________________________________

      Plaintiff Danah Bethscheider sued Defendant Westar Energy, Inc. (“Westar”),

her former employer, for disability discrimination in violation of the Americans with

Disabilities Act (ADA), 42 U.S.C. §§ 12111–12117. She appeals from three orders

of the district court: the denial of her request to extend discovery, the denial of her

motion to amend the pretrial order, and the grant of Westar’s motion for summary

judgment. We affirm the judgment of the district court.



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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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

      Bethscheider worked as an Accounts Payable Analyst for Westar from January

27 to May 15, 2014. In that period, she missed all or part of twelve workdays, five of

which were missed due to migraines. On May 15, 2014, Westar terminated

Bethscheider. In its written record of the termination, Westar stated “Regular

attendance is job related and consistent with our business needs. . . . Because

[Bethscheider] is chronically, frequently, and unpredictably absent from work,

management has determined she is unable to perform the functions of her job which

is resulting in termination.” Aplt. App. Vol. 1 at 109. Bethscheider asserts her direct

supervisor, Vicki Shurtz, made statements on the day she was fired to the effect that

Bethscheider’s missed work due to her migraines was the reason for her termination.

Id. Vol. 2 at 375; see also id. at 282–83. Bethscheider sued Westar, alleging her

termination violated the ADA

      After a conference in which both parties were represented by counsel, the

district court entered a scheduling order specifying discovery was to be completed by

September 5, 2017. On September 14, 2017, following another conference in which

both parties, through counsel, participated, the court entered a final pretrial order.

The order specified it would “not be modified except by consent of the parties and

the court’s approval, or by order of the court to prevent manifest injustice.” Id. Vol.

1 at 24. On October 6, 2017, Westar moved for summary judgment. Bethscheider

did not file a response until November 27, 2017, over a month out of time. See D.

Kan. Civ. R. 6.1(d)(2) (“Responses to . . . motions for summary judgment . . . must

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be filed and served within 21 days.”). In its reply, Westar argued the response should

be struck as untimely.

      On May 18, 2018, due to disciplinary issues in an unrelated case,

Bethscheider’s attorney moved to withdraw. The court granted the motion three days

later. On May 30, 2018, the district court struck the untimely response to the

summary judgment motion and, on its own motion, extended Bethscheider 30 days to

obtain new counsel, after which it would consider a motion to file a response to the

motion for summary judgment out of time.

      Bethscheider successfully obtained new counsel, who entered her appearance

on July 16, 2018. By motion on July 27, 2018, through her new counsel,

Bethscheider requested that the court not only grant her permission to respond to the

motion for summary judgment out of time, but also to amend the pretrial order and

extend discovery. Bethscheider sought to amend the pretrial order to assert

additional claims for relief and request noneconomic and punitive damages. She

sought an extension of the discovery cutoff so she could depose Defendant pursuant

to Fed. R. Civ. P. 30(b)(6).

      On March 20, 2019, the court granted the request to respond to the motion for

summary judgment but denied the requests to reopen discovery and amend the

pretrial order. Bethscheider’s new counsel filed a response opposing the motion for

summary judgment on April 19, 2019. The court granted the motion on December

31, 2019. This appeal follows.



                                          3
                                     ANALYSIS

A.    Motions to Amend the Pretrial Order and Extend Discovery

      Bethscheider asserts the district court erred in denying her motion to reopen

discovery and amend the pretrial order. We disagree. “[T]he district court has wide

discretion in its regulation of pretrial matters.” SIL-FLO, Inc. v. SFHC, Inc.,

917 F.2d 1507, 1514 (10th Cir. 1990). Therefore, “[w]e review the court’s decision

precluding the reopening of discovery for an abuse of discretion.” Id. Likewise, we

review a denial of a motion to amend the pretrial order for an abuse of discretion.

Koch v. Koch Indus., Inc., 203 F.3d 1202, 1216 (10th Cir. 2000). An abuse of

discretion occurs where the court’s decision is “arbitrary, capricious, or whimsical.”

Cox v. Sandia Corp., 941 F.2d 1124, 1125 (10th Cir. 1991) (internal quotation marks

omitted). We will not disturb the trial court’s decision without “a definite and firm

conviction that the lower court made a clear error of judgment or exceeded the

bounds of permissible choice in the circumstances.” United States v. Ortiz, 804 F.2d

1161, 1164 n.2 (10th Cir. 1986).

      In its March 20, 2019 order, recognizing the unique circumstances of the case,

the district court balanced fairness to Bethscheider, whose prior counsel had

withdrawn due to disciplinary issues, with fairness to Westar, which should not be

penalized for circumstances outside of its control. Bethscheider is bound by the

actions and/or mistakes of her prior counsel, including his inexplicable failure to

conduct discovery or advance potentially meritorious claims. Bethscheider

“voluntarily chose this attorney as [her] representative in the action, and [s]he cannot

                                           4
now avoid the consequences of the acts or omissions of this freely selected agent.”

Link v. Wabash R.R. Co., 370 U.S. 626, 633–34 (1962).

      Bethscheider’s prior counsel had over five months to conduct any necessary

discovery, an amount of time which was sufficient for Westar to complete the same.

Likewise, Bethscheider’s prior counsel had the opportunity to enumerate whichever

legal theories and damage claims he deemed most suitable for his client’s cause prior

to entry of the September 14, 2017, pretrial order. Under these circumstances, the

district court acted well within the bounds of permissible choice in declining to

reopen discovery or alter the pretrial order at the request of subsequent counsel, and

so it did not abuse its discretion in denying Bethscheider’s motions.

B.    Motion for Summary Judgment

      Bethscheider also asserts the district court erred in granting Westar’s motion

for summary judgment. We disagree. “We review summary judgment decisions de

novo, applying the same legal standard as the district court.” May v. Segovia,

929 F.3d 1223, 1234 (10th Cir. 2019) (internal quotation marks omitted). Summary

judgment is appropriate “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 examine the record and all reasonable inferences that might be

drawn from it in the light most favorable to the non-moving party.” T-Mobile Cent.,

LLC v. Unified Gov’t of Wyandotte Cty., 546 F.3d 1299, 1306 (10th Cir. 2008)

(internal quotation marks omitted).



                                           5
      The ADA prohibits discrimination in employment against “qualified

individual[s] on the basis of disability.” 42 U.S.C. § 12112(a). Thus

             [t]o establish a prima facie case of discrimination under the
             ADA, a plaintiff must show (1) that he is disabled within
             the meaning of the ADA; (2) that he is qualified, with or
             without reasonable accommodation, to perform the
             essential functions of the job held or desired; and (3) that
             he was discriminated against because of his disability.

Davidson v. Am. Online, Inc., 337 F.3d 1179, 1188 (10th Cir. 2003) (internal

quotation marks omitted). A “qualified individual” is “an individual who, with or

without reasonable accommodation, can perform the essential functions of the

employment position that such individual holds or desires.” 42 U.S.C. § 12111(8).

The court must consider “the employer’s judgment as to what functions of a job are

essential, and if an employer has prepared a written description before advertising or

interviewing applicants for the job, this description shall be considered evidence of

the essential functions of the job.” Id. “We will not second guess the employer’s

judgment when its description is job-related, uniformly enforced, and consistent with

business necessity.” Mason v. Avaya Commc’ns, Inc., 357 F.3d 1114, 1119

(10th Cir. 2004).

      The district court concluded Westar was entitled to summary judgment

because, assuming without deciding Bethscheider’s migraine condition was a

disability within the meaning of the statute and that she was fired because of that

condition, she was not a “qualified individual” because attendance was an essential

function of the Accounts Payable Analyst position. See Punt v. Kelly Servs.,


                                           6
862 F.3d 1040, 1051 (10th Cir. 2017) (“Physical attendance in the workplace is itself

an essential function of most jobs, and an employee’s request to work from home is,

as a matter of law, unreasonable if the employer has decided that physical presence at

the workplace is an essential function of the position.” (internal quotation marks,

citation, and brackets omitted)). Schurtz attested that attendance was an essential

function of the position because the job responsibilities often required immediate

communication with vendors and employees, for example, about company credit card

issues. The written job description for the position described the “Scheduled Work

Hours” as “Monday – Friday, 8:00 am to 5:00 pm,” and “Working Conditions” as

“Normal office working conditions. Must have a satisfactory work record including

good attendance.” Aplt. App. Vol. 1 at 98–99. The court rejected Bethscheider’s

contentions that she was “qualified” if accommodated with a flexible schedule, the

option to work from home, and/or intermittent leave whenever she experienced

migraines, concluding such accommodations were unreasonable as a matter of law on

the summary judgment record.

      On appeal, Bethscheider argues the district court erred because it did not

distinguish between “some . . . attendance,” “sufficient attendance,” and “attendance

that is in compliance with an employer’s attendance policy.” Aplt. Br. at 22

(emphasis omitted). She concedes “sufficient” attendance was an essential function

of her position but contends a genuine issue of material fact exists as to whether she

could have provided sufficient attendance to Westar and therefore perform the

essential functions of an Accounts Payable Analyst. Bethscheider asserts such an

                                           7
issue exists because (1) she was never provided a written attendance policy, (2) she

was not disciplined for absenteeism until her termination, (3) she was told she would

have “flex time,” allowing her to make up hours missed outside the normal schedule,

and (4) she was not told her absences were unacceptable to Westar at the time she

took them.

      Bethscheider, however, relies exclusively on her own affidavit and deposition

testimony relating her personal experiences at Westar to support these contentions.

Even taking her claims as true and construing them in the light most favorable to her,

this type of testimony, on its own, does not create a genuine issue of material fact on

the question of whether certain job duties are essential. See Mason, 357 F.3d at 1122

(“We are reluctant to allow employees to define the essential functions of their

positions based solely on their personal viewpoint and experience.”). Because no

genuine issue of material fact exists on the question of whether Bethscheider could

perform an essential function of her job (i.e. sufficient attendance), the district court

correctly concluded she was not a “qualified individual” entitled to protection under

the ADA, and properly entered summary judgment in favor of Westar.




                                            8
                        CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.


                                Entered for the Court



                                Paul J. Kelly, Jr.
                                Circuit Judge




                                9
