                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                        MAR 25 2003
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 DEBORAH R. REVELS,

             Plaintiff-Appellant,
      v.                                               No. 02-6164
 LUCENT TECHNOLOGIES, INC.;                         (W.D. Oklahoma)
 and LOCAL 1599 INTERNATIONAL                    (D.C. No. CIV-01-724-H)
 BROTHERHOOD OF ELECTRICAL
 WORKERS,

             Defendants-Appellees.




                          ORDER AND JUDGMENT *



Before HENRY, BRISCOE, and HARTZ, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously to decide this case on the briefs without oral argument. See Fed. R.

App. P. 34(2)(2)(C). 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        This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Plaintiff DeBorah Revels, proceeding pro se, appeals the district court’s

grant of summary judgment in favor of her former employer, Lucent

Technologies, Inc., and Local 1599 of the International Brotherhood of Electrical

Workers (“Union”). In her complaint, she alleged that Lucent’s refusal to allow

her to return to work after a 52-week disability leave violated the Americans with

Disabilities Act, 42 U.S.C. §§ 12101-12213, and § 301 of the Labor Management

Relations Act of 1947, 29 U.S.C. § 185. She also claims that the Union violated

the ADA and that it breached its obligations to her by not filing a grievance

against Lucent. For the reasons stated below, we affirm the judgment of the

district court.



                                 I. BACKGROUND

       The district court summarized the uncontroverted material facts, including

the following: Ms. Revels began working for Lucent at its Oklahoma City

manufacturing facility in November 1977. She was terminated from her position

as a Technical Support Analyst on August 9, 2000.

       Ms. Revels had left work on August 2, 1999 for dental surgery. On August

7, 1999, while she was still on leave, her son died from an accidental gunshot

wound. Ms. Revels started wage continuation payments under Lucent’s Sickness

and Accident Disability Benefit Plan (“SADBP,” or “Plan”), an ERISA welfare


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benefit program. The Plan provides benefits for employees disabled by sickness

or accident who meet certain requirements, including placing themselves under a

physician’s care and following his or her recommended treatment. The benefits

could last a maximum of 52 weeks. Ms. Revels’s initial benefit termination date

was August 8, 2000. On that date or earlier, provided the Lucent Health Services

office gave its approval, she could return to work.

      Ms. Revels’s primary care givers sent Lucent’s Health Services

organization several Certification of Illness or Disability forms over the course of

the next year. The August 20, 1999 form indicated that Ms. Revels was being

treated weekly for “depression/grief” and that the date for her release to return to

work was “unknown.” Lucent’s App. at 35 (declaration of Cynthia Williams ¶ 5),

52. The next Certification of Illness or Disability form, dated October 6, 1999,

was sent by Dr. Dean Hinz. It indicated that Ms. Revels was “being seen weekly”

for “stress/grief/depression.” Id. at 35, 53. Dr. Hinz sent a form with similar

content on November 1, 1999. Id. at 35, 54. Neither form indicated a “return to

work” date. Id. at 136-37.

      Ms. Revels was also seen by Lucent’s staff physician, Dr. Peyton Osborne.

According to an October 20, 1999 report, he noted that Ms. Revels was “still

grieving,” rendered a diagnosis of “depressive disorder, ” and suggested

counseling. Id. at 51. The disability report generated by Lucent indicates that Dr.



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Osborne’s staff made various attempts to schedule an appointment with Ms.

Revels in mid- to late November. The reports dated in late November indicate

that Ms. Revels needed to supply further documentation “verifying her disability

status” and that although frequent counseling had been urged by Drs. Hinz and

Osborne, Ms. Revels had been unsuccessful in setting up appointments because of

insurance problems. Id. at 48.

      After a November 24, 1999 appointment with Dr. Osborne, the doctor’s

notes indicate that Ms. Revels had at last managed to get approved to see a

counselor. The notes also indicate that Dr. Osborne considered Ms. Revels to be

in “no distress.” Id. at 49. At this point, Dr. Osborne “notified Dr. Hinz” who

“voiced no objection” to Ms. Revels return to work. Id. Apparently, a trial return

to work authorized by Lucent’s staff doctor did not separately require a written

medical release from Dr. Hinz.

      Ms. Revels was to return to work on November 29, 1999, but instead

returned to Dr. Hinz for treatment. Lucent extended Ms. Revels wage

continuation payments for one work day, and thus the payments under the SADBP

were to continue through August 9, 2000. 1

      1
        Ms. Revels, citing Ralph v. Lucent Technologies, Inc.,135 F.3d 166,
171-72 (1st Cir.1998), argues that her health benefits should have been extended
until August 12, 2000, because she was entitled to credit for November 25 and 26,
which were holidays. We agree with the district court, that even if Lucent
miscalculated her return date by a day or two, the error does not change the
                                                                      (continued...)

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      Lucent received subsequent healthcare provider’s reports from Dr. Hinz on

December 23, 1999 and March 8, and May 4, 2000, each indicating that Ms.

Revels was disabled from working, and none indicating a recommended date for

her return to work. On July 3, 2000, the Lucent benefits department sent Ms.

Revels a letter explaining the expiration of her benefits and the ensuing

termination of her position under the SADPB on August 9, 2000. The note

advised that Ms. Revels could apply for Lucent’s Long Term Disability Plan

benefits through the completion of various enclosed forms.

      On August 4, 2000, Anne Wallace, a nurse from Lucent’s Health Services

department telephoned Ms. Revels and specified that the return to work medical

release must specify “what ha[d] physically changed” before she could be allowed

back to work. Id. at 61. In contrast, Ms. Revels testified that Anne Wallace,

from Lucent’s Health Services department, had told Ms. Revels that she needed to

report to work by August 9, 2000 with a medical release or her employment would

be terminated.

      On August 8, 2000, after an office visit, Dr. Hinz’s notes state that Ms.

Revels suffering from post traumatic stress disorder, from kidney stone pain, and

from lumbar disk pain. See id. at 144. Dr. Hinz’s notes indicate that she was

      1
        (...continued)
outcome as to either Lucent or the Union. Unlike the plaintiff in Ralph, who had
medical letters supporting a provisional return to work, Ms. Revels is not entitled
to a formal extension of the time here.

                                         -5-
“still unable to function as per her job description.” Id. He also indicated she

was “totally disabled” and was not a suitable candidate for trial employment. Id.

at 147.

      However, on August 9, 2000, Ms. Revels telephoned Dr. Hinz’s office and

asked for a release to return to work, explaining that without the note, she would

be terminated. Notwithstanding his conclusions after the previous day’s office

visit, Dr. Hinz granted Ms. Revels’s request and supplied a Certification of Illness

or Disability form that she was released to return to work “pending ortho

consult.” Id. at 68.

      Ms. Revels arrived at Lucent’s Health Services office with Union

representative Janet Garton on the afternoon of August 9, 2000 with the note from

Dr. Hinz. When Ms. Revels attempted to return to work, a nurse contacted Dr.

Hinz’s office for an explanation of what had medically changed in Ms. Revels’s

diagnosis. The nurse’s notes indicate that Dr. Hinz’s office would only say that

Ms. Revels had requested to be released to return to work. Id. at 62. Nurse

Wallace deemed this explanation to be untenable and unsatisfactory, and she told

Ms. Revels that she “was not being accepted for work.” Id. Lucent then

terminated Ms. Revels employment. The Union did not request an independent

medical examination or file a grievance regarding Ms. Revels’s termination.




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      Before July 2000, Dr. Osborne worked in the Health Services department

and regularly examined employees who were returning to work. However in July,

the Health Services office transitioned to a nurse-based clinic, and Dr. Osborne

was no longer employed by Lucent. Lucent had hired a contract physician to staff

the office eight hours a week. In the alternative, the nursing staff was empowered

to authorize a return to work, provided an adequate explanatory release was

supplied. Although Ms. Revels was not notified of this new nurse-based system,

a Union representative testified that it was unwritten “past practice” that a return

to work release for an absence of 50 to 52 weeks should include an indication of

what had improved in the employee’s diagnosis. Lucent’s App. at 176 (dep. of

Janet Garton, dated Nov. 30, 2001).

      The district court granted summary judgment to the defendants. Ms.

Revels, who was represented in the district court proceedings by counsel, is now

proceeding pro se and timely appealed.



                                  II. DISCUSSION

      We review the district court’s grant of summary judgment de novo. Wolf v.

Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir. 1995). Summary

judgment is appropriate when there is “no genuine issue as to any material fact

and the moving party is entitled to judgment as a matter of law.” Id. (quoting



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Fed. R. Civ. P. 56(c)). Because Ms. Revels proceeds pro se, we must liberally

construe her pleadings. McBride v. Deer, 240 F.3d 1287, 1289 (10th Cir. 2001).

      Ms. Revels contends that Lucent and the Union discriminated against her in

violation of the ADA and § 301 of the LMRA. Specifically, Ms. Revels argues

that Lucent violated (1) the ADA when it “regarded” her as disabled and refused

to accept her medical release on August 9, 2000, thus refusing to allow her to

return to work; and (2) the LMRA by not following Lucent’s procedures when she

attempted to return to work. She maintains that the Union violated the ADA and

breached its duty of fair representation when it refused to file a grievance on her

behalf and assert her rights under the FMLA. 2 After reviewing the contentions

against Lucent, we will then turn to those against the Union.



      A. ADA Claim – Lucent

      Ms. Revels contends that Lucent violated the ADA by intentionally

discriminating against her when it refused to allow her to return to work because

Lucent regarded her as disabled. Lucent denies any discriminatory intent and

instead argues that it did not rehire Mr. Revels because she failed to produce a




      2
         Ms. Revels repeatedly asserts her right to a jury trial. Because we affirm
the grant of summary judgment for Lucent, we have determined “that there is no
genuine issue as to any material fact.” Fed. R. Civ. P. 56(c). There is thus no
need for a jury to make any factual findings.

                                         -8-
satisfactory physician’s opinion that she was medically fit to resume employment,

as required under its unwritten policy.

       The ADA prohibits employers from discriminating against individuals on

the basis of disability. 42 U.S.C. § 12112(a). To survive summary judgment on

her claim for disability discrimination under the ADA, Ms. Revels “bore the

burden of raising a genuine issue of material fact on each element of her prima

facie case.” Doyal v. Okla. Heart, Inc., 213 F.3d 492, 495 (10th Cir. 2000). To

do so, she had to show “(1) she is a disabled person as defined by the ADA; (2)

she is qualified, with or without reasonable accommodation, to perform the

essential functions of the job held or desired; and (3) the employer discriminated

against her because of her disability.” Id.

      “Disability is a term of art under the ADA.” Id. To satisfy the statutory

definition of disability, Ms. Revels had to show either that she had “a physical or

mental impairment that substantially limits one or more of [her] major life

activities,” or that she had “a record of such impairment,” or that she was

“regarded as having such an impairment.” 42 U.S.C. § 12102(2)(A)-(C). Ms.

Revels maintains that she qualifies as a “disabled” person under the ADA because

Lucent refused to allow her to return to work because it “regarded” her as being

disabled under § 12102(2)(C).

      We evaluate discrimination claims predicated upon the ADA using the

burden-shifting analysis first used to examine Title VII employment

                                          -9-
discrimination claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802-04 (1973), and later developed in Texas Dept. of Community Affairs v.

Burdine, 450 U.S. 248, 252-56 (1981) and St. Mary’s Honor Ctr. v. Hicks, 509

U.S. 502, 506-12 (1993). Under this burden-shifting framework, plaintiffs who

make a facial showing that they are “qualified, disabled persons” under the ADA,

create a presumption that the defendant engaged in unlawful discrimination.

Hicks, 509 U.S. at 506. Once that presumption is created, the defendant must

produce evidence supporting a nondiscriminatory explanation for its decision. Id.

at 506-07. This explanation, of course, must not be mere pretext. Id. at 515.

      Lucent maintains that Ms. Revels cannot establish a prima facie case, and

even if she could, that it proffered a legitimate nondiscriminatory reason for not

allowing her to return to work–that is, her doctor’s note did not provide an

adequate explanation of the change from “permanently disabled” to “able to

work.” Because we decide below that Lucent offered a legitimate reason for not

rehiring Ms. Revels, and no evidence indicates that this reason was pretextual, we

need not address the issue of whether Ms. Revels was indeed “qualified and

disabled” under the ADA.

      Under the assumption that Ms. Revels is qualified and disabled for

purposes of the ADA, the burden of production shifts to the defendant to produce

evidence of a legitimate, nondiscriminatory reason for the challenged employment

decision. Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995). Lucent

                                         -10-
maintains that it refused to allow Ms. Revels to return to work because (1) the

medical release did not explain what had medically changed to explain why she

was then able to return to work; and (2) based on past practice and based on the

previously received health care provider notes, Lucent had reason to expect that

such an explanation would be forthcoming.

      Construing Ms. Revels’s allegations liberally, as we must, she contends that

Lucent did not follow its established procedures when it refused to allow her to

return to work. Lucent admits it was transitioning to a nurse-based facility, and

there is no suggestion that it told Ms. Revels that no doctor would be present on

August 9, 2000. However, we agree with Lucent that had a physician been

present, that she too would have contacted Dr. Hinz’s office for clarification, and

that the outcome would remain unchanged.

      Lucent also attacks the Dr. Hinz release note as a “sham,” pointing to Dr.

Hinz’s notes that the release was given “solely” at Ms. Revels’s request. Lucent’s

App. at 148. Sham or not, Lucent concedes that the medical release requirement

was not written in its disability plan. However, the Union and Lucent aver that

the requirement was established practice and we agree that “[t]here is no evidence

that Lucent fabricated the policy.” Aples’ Br. Addendum (Dist. Ct. Order, filed

May 6, 2002), at 12 n.36. The goal of the release requirement–to ensure that

returning to work does not hamper recovery–is rational and legitimate. We hold

that Lucent has articulated a legitimate, non-discriminatory reason for refusing to

                                        -11-
allow Ms. Revels to return to work. See Holtzclaw v. DSC Communications

Corp., 255 F.3d 254, 259 (5th Cir. 2001) (holding written medical release was

“not probative evidence” of employees “ability to work”; no medical evaluation

performed before letter was written). We also hold that Ms. Revels has adduced

no proof that Lucent’s stated reasons were pretextual.



      B. LMRA Claim - Lucent

      Ms. Revels appears to argue that Lucent failed to comply with the

Independent Medical Evaluation provisions of a Local Letter attached to the

Collective Bargaining Agreement. We agree that because the Union never

requested an independent medical evaluation, Lucent’s obligations were not

triggered. In addition, Dr. Hinz’s August 9, 2000 letter was incomplete and

inconsistent with his previous evaluations. The district court properly granted

summary judgment to Lucent on this claim.



      C. ADA Claim - Union

      We also agree with the district court’s conclusion that Ms. Revels’s claims

against the Union fail. The district court noted that Ms. Revels was unclear as to

what she was alleging: “When asked whether it was her position that the union

did not discriminate against her because it regarded her as disabled, the plaintiff

replied: ‘I have never mentioned discrimination.’” Aples’ Br. Addendum at 15

                                        -12-
(Dist. Ct. Order, filed May 6, 2002). On appeal, Ms. Revels notes that she was

largely dependent upon her counsel at the time, that discovery was not yet

complete, that she hoped for a jury trial, and that she lacked “clarity” after a “very

tedious” deposition. Aplt’s Br. at 22-23. “Despite the liberal construction

afforded pro se pleadings, the court will not construct arguments or theories for

the plaintiff in the absence of any discussion of those issues.” Drake v. City of

Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (citation omitted). Ms.

Revels’s ADA claim against the Union suffers from the identical deficiencies as

her claim against Lucent, and was properly dismissed.



      D. Fair Representation Claim–Union

      Ms. Revels lists the dismissal of this claim in her “Issues Presented for

Review (iii),” Aplt’s Br. at 5, but she appears to offer no further argument or

discussion of the issue. Before the district court, Ms. Revels claimed that the

Union’s failure to file a grievance was a breach of its obligations to her. Given

our above analysis, we agree that the reasoning of the district court in dismissing

this claim was sound. There is no evidence that the Union arbitrarily “ignored a

meritorious grievance or otherwise discriminated against [Ms. Revels], acted in

bad faith or engaged in perfunctory conduct.” Aples’ Br. Addendum, at 17 (Dist.

Ct. Order, filed May 6, 2002) (citations omitted).



                                         -13-
                              III. CONCLUSION

      Accordingly, we AFFIRM the district court’s grant of summary judgment to

the defendants.

                                            Entered for the Court,



                                            Robert H. Henry
                                            Circuit Judge




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