                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                        November 29, 2005
                             FOR THE TENTH CIRCUIT
                                                                           Clerk of Court


    KENNETH BUETTNER,

                 Plaintiff-Appellant,

     v.                                                    No. 04-6389
                                                     (D.C. No. CV-03-848-T)
    NORTH OKLAHOMA COUNTY                                  (W.D. Okla.)
    MENTAL HEALTH CENTER, doing
    business as North Care Mental Health
    Center,

                 Defendant-Appellee.


                             ORDER AND JUDGMENT            *




Before KELLY, McKAY , and McCONNELL , Circuit Judges.


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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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      This order and judgment is not binding precedent, except under the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. 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-Appellant Kenneth Buettner filed suit against his former employer,

North Oklahoma County Mental Health Center, doing business as North Care

Mental Heath Center (North Care). Plaintiff claimed that North Care

constructively discharged him in violation of the Americans with Disabilities Act

(ADA) and Oklahoma’s statutory prohibitions against disability discrimination,

the Family and Medical Leave Act (FMLA), the Age Discrimination in

Employment Act (ADEA), and Oklahoma’s statutory prohibition against

retaliation for exercise of workers’ compensation rights. North Care moved for

summary judgment. After a thorough analysis, the district court granted North

Care’s motion for summary judgment and dismissed plaintiff’s claims. Plaintiff

appeals, and we affirm.

                                 BACKGROUND

      The district court’s order contains a thorough and detailed recitation of the

record evidence and factual background, which we need not repeat. The district

court dismissed plaintiff’s workers’ compensation retaliation claim because

plaintiff never told North Care he suffered a work-related injury or that he

intended to file a workers’ compensation claim, and he did not file his claim until

after he resigned. It also dismissed plaintiff’s ADEA claim because plaintiff

failed to present evidence that he was replaced by a younger worker, treated

differently than any other employees because of his age, or constructively


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discharged because of his age. As to plaintiff’s FMLA claim, the district court

ruled that plaintiff presented no evidence from which a reasonable juror could

conclude that plaintiff's separation from employment was causally connected to

the fact that North Care provided him with FMLA rights. Finally, the district

court ruled that plaintiff did not demonstrate that he suffers from a qualifying

disability under the ADA, that is, a physical or mental impairment which

substantially limits one or more major life activities, and thus, ruled that plaintiff

failed to establish a prima facie case of ADA discrimination.

                                       ANALYSIS

       We review the grant of summary judgment de novo, applying the same

standard as did the district court.   MacKenzie v. City & County of Denver   ,

414 F.3d 1266, 1273 (10th Cir. 2005). Summary judgment is proper where the

pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and the moving party is entitled to a judgment as a matter of law.

Fed. R. Civ. P. 56(c). We review the record and any reasonable inferences

therefrom in the light most favorable to the nonmoving party.     MacKenzie ,

414 F.3d at 1273.




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                            Age Discrimination Claim .

      Plaintiff contends the district court erred in dismissing his age

discrimination claim, arguing it improperly resolved disputed issues of fact.

Plaintiff alleged he was replaced by a younger worker, Terry Hamm.        See Miller

v. Eby Realty Group LLC, 396 F.3d 1105, 1111 (10th Cir. 2005) (noting that one

required element of prima facie ADEA discrimination claim is replacement by a

younger worker). North Care responded that it did not replace plaintiff with

Hamm, but that Hamm was simply hired as an additional maintenance worker and

months later plaintiff resigned. It presented evidence that it decided after the

merger it needed an additional maintenance worker; that it advertised for this

position in August 2002, before plaintiff failed to finish his repair tasks or was

hospitalized; and that it hired Hamm for this job in September 2002, while

plaintiff was on leave but before it had any indication he would not return to

work. North Care’s evidence consisted of an affidavit from its human resource

director, Ms. Brandenberger, as well as its August 2002 newspaper advertisement

and the related bill showing the ad ran in August.

      In response, plaintiff’s only evidence was an affidavit from a former North

Care employee repeating a hearsay statement from a supervisor who introduced

Hamm to her as the person replacing plaintiff. The district court ruled that

plaintiff failed to present evidence that he was replaced by a younger worker and


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that the undisputed evidence showed only that North Care hired an additional

maintenance worker months before plaintiff resigned.

      We find no error in the district court’s analysis of this evidence. Plaintiff

argues that the affidavit from Ms. Brandenberger was insufficient to sustain

summary judgment because it was simply a self-serving declaration from an

interested North Care employee. There are two flaws in plaintiff’s argument.

First, it is plaintiff who failed to present evidence in support of his allegation that

Hamm replaced him.     See Celotex Corp. v. Catrett , 477 U.S. 317, 324 (1986)

(holding that nonmoving party is not entitled to a trial merely on the basis of

allegations, but must come forward with some significant probative evidence to

support its claim). As the district court noted, plaintiff’s affiant merely repeats

inadmissible hearsay. Hearsay testimony that would not be admissible at trial is

not sufficient to defeat a motion for summary judgment.      Thomas v. IBM , 48 F.3d

478, 485 (10th Cir. 1995). Further, there is no showing that either his affiant or

the quoted supervisor had any personal knowledge as to whether Hamm replaced

plaintiff, or ever assumed any of plaintiff’s job responsibilities, or that either

person had any role in hiring Hamm or otherwise had any personal knowledge of

the hiring circumstances.   See Tavery v. United States , 32 F.3d 1423, 1427 n.4

(10th Cir. 1994) (noting that, to be admissible for summary judgment purposes,

affidavit statements must be made on personal knowledge).


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         Second, plaintiff’s evidence does not controvert North Care’s evidence that

Hamm’s position was advertised before any of the problems between it and

plaintiff arose, or that Hamm was hired months before plaintiff resigned. In

contrast to plaintiff’s evidence, North Care’s affidavit was properly based on

Ms. Brandenberger’s personal knowledge and it set forth facts that would be

admissible as evidence. Morever, contrary to plaintiff’s allegation,

Ms. Brandenberger’s affidavit was also supported by contemporaneous business

records. The mere existence of a scintilla of evidence in support of plaintiff’s

position is insufficient to create a dispute of fact that is “genuine” under Rule 56,

and we agree with the district court that plaintiff failed to present facts from

which a reasonable jury could find in his favor.      See Simms v. Okla. ex rel. Dep't

of Mental Health & Substance Abuse Servs.         , 165 F.3d 1321, 1326 (10th Cir.

1999).

         Plaintiff next contends the district court erroneously required him to

present direct evidence of age discrimination. This misstates the district court’s

order: it merely noted, correctly, that plaintiff did not present any such evidence.

We also agree with the district court, for the reasons stated in its order, that

plaintiff did not present evidence of a pattern or practice of age discrimination.

See Vanasco v. National-Louis Univ.     , 137 F.3d 962, 967 (7th Cir. 1998)

(explaining that “evidence of scattered decisions either favoring or disfavoring


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older employees reveals little about the [employer’s] processes and is certainly

insufficient, without more, to prove a pattern of age discrimination”). The district

court correctly dismissed plaintiff’s ADEA claim.

                                   FMLA Claim .

      FMLA requires employers to provide their employees with up to twelve

weeks of unpaid leave in the event the employee has a serious medical condition.

29 U.S.C. § 2612(a)(1)(D). The employer may require the employee to submit a

medical certification of his medical condition prior to authorizing the leave,

29 U.S.C. § 2613(a); 29 C.F.R. § 825.305(b), and may require the employee to

submit a “fitness-for-duty” certification from his physician as a condition of

returning to work, 29 C.F.R. § 825.310. If the employee has not submitted a

required “fitness-for-duty” certification by the time the employee’s FMLA leave

has ended, the employee may be terminated. 29 C.F.R. § 825.311(c). FMLA

makes it unlawful for any covered employer “to interfere with, restrain, or deny

the exercise of or the attempt to exercise” FMLA rights, 29 U.S.C. § 2615(a)(1),

or to retaliate against an employee for exercising his FMLA rights, 29 U.S.C.

§ 2615(a)(2).

      The district court ruled that plaintiff presented no evidence from which a

reasonable juror could conclude that plaintiff’s decision to resign was causally

related to the fact that North Care provided him with FMLA benefits. On appeal,


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plaintiff first contends the district court failed to address his allegation that North

Care interfered with his right to FMLA benefits. Although the district court’s

topic heading only referred to plaintiff’s FMLA retaliation claim, it is clear from

the text of its order that the court considered plaintiff’s interference claim.

Indeed, plaintiff presented no evidence in support of this allegation, and, thus, we

find no error. See Celotex , 477 U.S. at 324.

      Plaintiff next contends the district court erred in finding no evidence in

support of his claim that he was constructively discharged in retaliation for

exercising his FMLA rights. To establish a prima facie FMLA retaliation claim, a

plaintiff must show that (1) he availed himself of a protected right under the

FMLA, (2) an employment decision adversely affected him, and (3) a causal

connection between the two actions exists.         Morgan v. Hilti, Inc. , 108 F.3d 1319,

1325 (10th Cir. 1997). To establish a constructive discharge, plaintiff must show

that North Care “made working conditions so difficult that a reasonable person in

the employee’s position would feel compelled to resign.”         Sandoval v. City of

Boulder , 388 F.3d 1312, 1325 (10th Cir. 2004) (quotation omitted).

      Plaintiff alleged in his complaint that North Care refused to allow him to

return to work after his hospitalization in retaliation for using FMLA benefits.

The district court ruled there was no casual connection between plaintiff’s

decision not to return to work and the use of his FMLA benefits. In this regard,


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the district court noted that plaintiff had failed to submit the requested

“fitness-for-duty” certification, to which North Care was legally entitled under

FMLA. See 29 C.F.R. § 825.311(c).

      Plaintiff argues the district court failed to consider the letters from his

doctors stating he had been absent from work because of his (unspecified)

medical condition, and that he did provide some medical evidence of medical

restrictions related to standing and lifting. These documents are not relevant,

however, because they only address the reasons for plaintiff’s absence, not his

ability to return to work. The issue is not whether plaintiff submitted proper

certification to receive FMLA leave; it is undisputed that plaintiff never requested

FMLA leave and that North Care provided such leave on its own initiative as soon

as it learned of plaintiff’s hospitalization, and continued providing him with

FMLA leave until it was depleted.

      At issue here is only whether the adverse employment action – North Care’s

refusal to allow plaintiff to return to work after his hospitalization – was in

retaliation for plaintiff’s exercise of his FMLA rights. As the district court

correctly explained, North Care was legally entitled under FMLA to require

plaintiff to provide a “fitness-for-duty” certification before allowing him to return

to work, and plaintiff failed to do so. Plaintiff contends that North Care never

specifically requested a “fitness-for-duty” certification regarding his


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hospitalization, but the record demonstrates otherwise. North Care sent plaintiff a

letter on October 7, 2002, specifically informing him that it would need a medical

release from all of the doctors who had treated him, not just from his foot doctor,

stating he was able to perform his job. We agree with the district court that

plaintiff failed to present evidence that North Care retaliated against plaintiff for

using his FMLA benefits. We also agree that plaintiff did not present evidence of

any pattern or practice of retaliatory FMLA discrimination.

                       Workers’ Compensation Retaliation Claim.

         Plaintiff contends there was evidence that North Care was on notice that his

injury was work-related, and, therefore, the district court erred in dismissing his

workers’ compensation retaliation claim. To establish a prima facie case of

retaliatory discharge pursuant to Oklahoma’s Workers’ Compensation Act, a

plaintiff must prove (1) employment, (2) an on-the-job injury, (3) receipt of

treatment under circumstances which would put the employer on notice that

treatment has been rendered for a work-related injury, or that the employee

instituted or caused to be instituted, proceedings under the Act, and (4)

consequent termination.     Buckner v. Gen. Motors Corp. , 760 P.2d 803, 806 (Okla.

1988).

         Here, it is undisputed that plaintiff was not injured on the job. He suffered

from a 1993 injury to his arm and hand; a foot condition known as Morton’s


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neuroma, diagnosed in 1998; and a June 22, 2002 injury to his foot which

occurred at home. Further plaintiff admitted in his deposition that he never told

anyone at North Care that he suffered a work-related injury or that he intended to

file a workers’ compensation claim.

       He contends, however, that he informed North Care that the injury to his

feet was exacerbated by his new job duties, that North Care knew he was

receiving medical treatment for his feet, and that this information was sufficient

to put North Care on notice that he might file a workers’ compensation claim. We

disagree. None of plaintiff’s communications with North Care suggested in any

way that his injuries were work-related. Merely telling North Care that he was

receiving medical treatment related to non-work-related injuries and was unable

to do prolonged standing or lifting over twenty pounds because of those injuries is

insufficient to give North Care notice that he might later characterize those

injuries as work-related.   Buckner , 760 P.2d at 810-11 (holding that an employer’s

knowledge that the employee sought medical treatment, without more, is

insufficient notice that a workers’ compensation claim is imminent). We agree

with the district court that the record contains no evidence which might have put

North Care on notice of the possibility of a workers’ compensation claim.

                                      ADA Claim.




                                          -11-
       Plaintiff next claims that the district court erred in dismissing his ADA

claim. “Merely having an impairment does not make one disabled for purposes of

the ADA. Claimants also need to demonstrate that the impairment limits a major

life activity.”   Toyota Motor Mfg., Ky., Inc. v. Williams   , 534 U.S. 184, 195

(2002). After discussing the evidence and the relevant legal precedent at length,

the district court ruled that plaintiff did not make this showing. Plaintiff argues

this was error because the question of whether he has a physical impairment that

substantially limits one or more of his major life activities is a fact question for a

jury, not the district court.

       Whether a plaintiff has an impairment under the ADA and whether the

identified activity is a major life activity are questions of law for the court.

Doebele v. Sprint/United Mgmt. Co.      , 342 F.3d 1117, 1129 (10th Cir. 2003).

Although the question of whether an impairment is substantially limiting is

ordinarily a factual question for a jury, it may be evaluated by the judge upon a

motion for summary judgment.        Id. at 1130 n.5; Bristol v. Bd. of County Comm'rs     ,

281 F.3d 1148, 1161 n.5 (10th Cir. 2002),      vacated in part on different grounds   ,

312 F.3d 1213 (10th Cir. 2002) (en banc).

       To demonstrate that an impairment is substantially limiting, a plaintiff must

show that he is “unable to perform the activity or is significantly restricted in the




                                            -12-
ability to perform the major life activity compared to the general population.”

Lusk v. Ryder Integrated Logistics      , 238 F.3d 1237, 1240 (10th Cir. 2001).

Where an impairment is not so severe that it is “substantially limiting on its face,”

a plaintiff must present “evidence comparing [his] . . . restrictions to that of an

average person.”     Id. Limitations on the ability to engage in life activities, such

as prolonged standing and lifting heavy objects, are part of the human condition,

and unless an ADA plaintiff can show that his impairment reduces his capabilities

significantly below those of the average person, he is not deemed “disabled”

under the Act.

       We agree with the district court, for the reasons stated in its order, that

plaintiff presented no evidence that his ability to walk or stand is significantly

lower than that of the average person. His evidence that he may not lift more than

twenty pounds is likewise insufficient. As the district court correctly noted, a

twenty-pound lifting restriction is not, as a matter of law, substantially limiting on

its face. See Rakity v. Dillon Cos. Inc. , 302 F.3d 1152, 1160 (10th Cir. 2002)

(noting precedents from other circuits that ten and twenty-pound lifting

restrictions are not substantially limiting, citing   Pryor v. Trane Co. , 138 F.3d

1024, 1025 n.2 (5th Cir. 1998);      McKay v. Toyota Motor Mfg., U.S.A., Inc.     , 110

F.3d 369, 373 (6th Cir. 1997); and      Wooten v. Farmland Foods , 58 F.3d 382, 384,

386 (8th Cir. 1995)); see also Lusk , 238 F.3d at 1241 (citing    Thompson v. Holy


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Family Hosp. , 121 F.3d 537, 540 (9th Cir. 1997) (twenty-five pound lifting

restriction is not a substantial limitation on the ability to lift);   Williams v.

Channel Master Satellite Sys., Inc.      , 101 F.3d 346, 349 (4th Cir. 1996) (same)

(abrogated on other grounds by        Baird ex rel. v. Rose , 192 F.3d 462 (4th Cir.

1999)).

       The evidence presented by plaintiff was insufficient to allow a reasonable

jury to find that any of his impairments substantially limited one or more of his




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major life activities. Thus, the district court correctly dismissed his ADA claims.

      The judgment of the district court is AFFIRMED.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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