                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   May 12, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    DONNA J. NEALEY,

                Plaintiff-Appellant,
                                                         No. 08-3144
    v.                                          (D.C. No. 2:06-CV-02237-CM)
                                                           (D. Kan.)
    WATER DISTRICT NO. 1 OF
    JOHNSON COUNTY, KANSAS,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before TACHA, MURPHY, and HARTZ, Circuit Judges.



         Donna J. Nealey appeals the district court’s entry of summary judgment in

favor of her former employer, Water District No. 1 of Johnson County, Kansas

(WaterOne), on her claims under the Americans with Disabilities Act (ADA),

42 U.S.C. § 12101-12213; the Age Discrimination in Employment Act (ADEA),

29 U.S.C. §§ 621-634; and the Family and Medical Leave Act (FMLA), 29 U.S.C.


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
§§ 2601-54. Reviewing the district court’s grant of summary judgment de novo

and considering the evidence in the light most favorable to Ms. Nealey, we

affirm. See Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1167

(10th Cir. 2007).

                                  BACKGROUND

      Ms. Nealey began her employment with WaterOne in 1988 as a support

clerk in the Engineering Department. By 1994 she was working as an

administrative assistant to Dan Smith, who later became director of distribution.

From 1994 to 2003, Mr. Smith gave Ms. Nealey positive performance appraisals,

rating her as satisfactory or better.

      While under Mr. Smith’s supervision, Ms. Nealey had health problems,

resulting in the need for occasional FMLA leave. Because of lung-cancer surgery

on June 29, 2000, she took about 11 weeks of FMLA leave. In June 2002 she

took a second 11-week FMLA leave of absence for neuropathic pain. Although

Ms. Nealey exhausted her available FMLA leave by August 2002, WaterOne, with

Mr. Smith’s approval, provided an additional two months of leave. She returned

to full-time work as Mr. Smith’s administrative secretary in the fall of 2002.

      In the spring of 2004 several circumstances combined to affect

Ms. Nealey’s employment situation. Ms. Nealey continued to have health issues.

On March 29 an administrative-support clerk injected Ms. Nealey with Toradol®,

a nonsteroidal anti-inflammatory drug prescribed for pain, in the bathroom at

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WaterOne. Mr. Smith, unaware of the Toradol incident, informed Ms. Nealey on

April 16 that he was frustrated with her absenteeism and was going to discuss her

unsatisfactory attendance with individuals in the human-resources department.

He drafted a memorandum to Ms. Nealey dated April 22 summarizing the effects

of her unreliable attendance and stating that he was placing her on six-months

probation as of April 22.

      Meanwhile, the relationship between Ms. Nealey and the

administrative-support clerk had deteriorated. On April 22 the clerk reported the

Toradol incident to her supervisor, Mr. Smith, and members of the legal

department. Mr. Smith did not send Ms. Nealey his memorandum concerning

probation for absenteeism. Instead, Ms. Nealey was placed on paid administrative

leave pending WaterOne’s investigation into a possible violation of its

drug-and-alcohol policy. Ms. Nealey hired an attorney.

      On May 24, WaterOne informed Ms. Nealey and her attorney that it had

found no policy violation arising from the Toradol injection. It determined,

however, that Mr. Smith had lost confidence in Ms. Nealey and that he should not

continue as her direct supervisor. An individual younger than Ms. Nealey was

hired as Mr. Smith’s administrative secretary.

      Ms. Nealey’s attorney and WaterOne continued to negotiate her return to

work, with the attorney demanding that Ms. Nealey be restored to her former

position. WaterOne responded by offering two alternative positions. It also

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provided information about long-term disability benefits available from its

insurance carrier.

       Eventually, Ms. Nealey accepted WaterOne’s offer of an administrative

assistant/analyst position at her current pay grade, reporting to Greg Johnson, who

was supervised by Mr. Smith. She started work on September 7, 2004. The next

day, she left work early and began an FMLA leave of absence until October 2004.

Later in September, Ms. Nealey filed an EEOC charge alleging age and disability

discrimination, along with FMLA interference and retaliation. Without keeping a

similar log for other employees and on advice of counsel, Mr. Johnson began a

log of incidents relating to Ms. Nealey.

      Ms. Nealey was unhappy with the duties and conditions of her new job.

From May to December 2005 she requested and received periods of FMLA leave

for various reasons, including pneumonia. She informed WaterOne that her

doctor had prescribed narcotic medication, but that he had not placed any

restrictions on her work duties. Beginning in July 2005, Johnson logged a

number of reports of Ms. Nealey’s sleeping at work. There were descriptions of

her snoring at her desk, sleeping standing up, sleeping with her finger on the

computer keyboard (which caused a beeping noise), and acting disoriented and

unresponsive when a fire alarm sounded. In one remarkable occurrence reported

by a benefits administrator, Ms. Nealey fell asleep during a private session




                                           -4-
concerning her FMLA leave. A video filmed by Mr. Johnson showed Ms. Nealey

with her head on her desk for several minutes.

      On several occasions Ms. Nealey was sent home and on other occasions she

was counseled to remain at home if she could not stay awake and alert.

Ms. Nealey, however, often denied that she had been asleep, asserting that she

had been listening with her head down, closing her eyes to focus, or practicing

biofeedback. Mr. Johnson’s review of Ms. Nealey for April 22 through October

27, 2005, commented on “numerous errors or omissions,” and noted that she

often “appear[ed] sleepy and confused” and had been found “asleep at her desk on

several occasions.” Id. at 751-52. Her 2006 goals were to “[i]mprove accuracy

of work,” and “[n]o sleeping during work day.” Id. at 752.

      The day after her review, Ms. Nealey’s counsel sent an e-mail asserting that

WaterOne’s practice of sending her home amounted to retaliation. WaterOne

retained a law firm to investigate the complaint. After interviewing the persons

involved and viewing a video showing Ms. Nealey with her head on her desk for

several minutes, the firm’s investigator found that Ms. Nealey had been either

sleeping or unable to function at an acceptable level. His conclusion was that

WaterOne’s employees made sensible decisions in dealing with an employee who

could not perform her duties.

      Reports of Ms. Nealey sleeping at work continued into 2006. She

complained to WaterOne about alleged discrimination and retaliation in sending

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her home involuntarily and in joking by fellow employees about sleeping on the

job. WaterOne conducted investigations into Ms. Nealey’s allegations but found

no wrongdoing.

      Mr. Smith sent an e-mail to human resources describing the frustration of

Mr. Johnson in dealing with Ms. Nealey. Mr. Smith opined that Ms. Nealey

“ha[d] done a masterful job . . . to manipulate all of us into a[n] impossible

situation” and “ha[d] the District doing investigation after investigation for the

most trivial incidents or comments.” Id. at 757. In February some unidentified

WaterOne managers attended audio conferences on “Terminating Employees

Without Getting Sued” and “FMLA Abuse: Fight Back and Win.” Id. at 569-70.

      On March 7, 2006, Mr. Johnson and the WaterOne director of human

resources both observed Ms. Nealey sleeping on the job. They met with her and

reminded her of previous warnings about sleeping on the job. At the end of the

meeting they gave Ms. Nealey a disciplinary-action form and suspended her

without pay through March 9. On March 10 she disclosed a new medical

condition that would require surgery and medical leave. On March 14 Ms. Nealey

was again seen asleep at her workstation. She was suspended without pay until

further notice. By letter dated March 17, WaterOne advised her that it was

terminating her employment as of March 31.




                                          -6-
      Ms. Nealey filed her lawsuit on June 8, 2006. The district court granted

summary judgment to WaterOne on all claims. Ms. Nealey now appeals the

district court’s decision.

                                   DISCUSSION

       Summary judgment is appropriate “if the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue

as to any material fact and that the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(c). On appeal Ms. Nealey asserts error in the district

court’s disposition of her claims of age discrimination under the ADEA; disability

discrimination under the ADA; retaliation for her exercise of rights under the

FMLA, the ADEA, and the ADA; and interference with the FMLA. Ms. Nealey’s

only EEOC claim was filed in September 2004, so her discrimination claims are

limited to events occurring by that date. Jones v. U.P.S., Inc., 502 F.3d 1176,

1186 (10th Cir. 2007) (“[A]ny adverse employment actions occurring after

[plaintiff] submitted [her] administrative charge . . . would not fall within the

scope of [her] charge.”).

      Because Ms. Nealey lacks direct evidence of age or disability

discrimination or of retaliation under the FMLA, the ADEA, or the ADA, these

claims are properly analyzed under the burden-shifting framework described in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See Sanders v.

Sw. Bell Tel., L.P., 544 F.3d 1101, 1106 (10th Cir. 2008) (ADEA discrimination);

                                         -7-
Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1201 (10th Cir. 2008) (ADEA

retaliation); Proctor v. United Parcel Serv., 502 F.3d 1200, 1208 (10th Cir. 2007)

(ADA retaliation); Jones, 502 F.3d at 1189 (ADA discrimination); Metzler v.

Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1170 (10th Cir. 2006 ) (FMLA

retaliation). Under this scheme the plaintiff must initially establish a prima facie

case and, if she does so, “the burden shifts to the employer to articulate some

legitimate, nondiscriminatory reason for its action.” Rivera v. City & County of

Denver, 365 F.3d 912, 920 (10th Cir. 2004) (age discrimination) (internal

quotation marks omitted). “Should the defendant carry this burden, the plaintiff

must then have an opportunity to prove by a preponderance of the evidence that

the legitimate reasons offered by the defendant were not its true reasons, but were

a pretext for discrimination.” Id. (internal quotation marks and alteration

omitted). For FMLA interference claims, the analysis is different and will be

discussed later.

ADEA Claim

      According to Ms. Nealey, WaterOne discriminated against her based on

age in 2004 by investigating the Toradol incident and refusing to let her return to

her previous position as Mr. Smith’s administrative secretary. The parties agree

that she established a prima facie case and that WaterOne stated legitimate

reasons for its actions. They part ways, however, on whether Ms. Nealey met her

burden of producing evidence from which one could infer that WaterOne’s

                                         -8-
reasons for changing her position were pretextual. Ms. Nealey asserts that pretext

is established by (1) her vindication in the investigation of the Toradol incident;

(2) the “after-the-fact” nature of Mr. Smith’s “loss of confidence” explanation;

and (3) Mr. Johnson’s keeping of a log on her work activities.

      On the question of pretext, “we consider the facts as they appeared to the

person making the decision, and we do not second-guess the employer’s decision

even if it seems in hindsight that the action taken constituted poor business

judgment.” Riggs v. AirTran Airways, 497 F.3d 1108, 1119 (10th Cir. 2007).

The court does not “act as a super personnel department, second guessing

employers’ honestly held (even if erroneous) business judgments.” Young v.

Dillon Cos., 468 F.3d 1243, 1250 (10th Cir. 2006) (internal quotation marks

omitted). WaterOne has explained the procedure and results of the

alcohol-and-drug-policy investigation and also the basis for its decision to

transfer Ms. Nealey from the position of Mr. Smith’s confidential assistant.

Further, Mr. Johnson’s log did not exist until well after the events Ms. Nealey

identifies as discriminatory. Viewing the evidence as a whole, we see no genuine

issue of material fact on the issue of whether WaterOne’s decision was a pretext

for age discrimination.

ADA Discrimination Claim

      Ms. Nealey claims that WaterOne’s 2004 actions likewise violated the

ADA. An essential element of a prima facie ADA case is a showing that the

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plaintiff is a disabled person within the meaning of that statute. Jones, 502 F.3d

at 1189. Ms. Nealey asserts that she is protected by the ADA because WaterOne

regarded her as having an impairment substantially limiting the major life activity

of working. For ADA purposes, an individual is disabled if he is “regarded as

having” “a physical or mental impairment that substantially limits one or more

major life activities of [an] individual.” 42 U.S.C. § 12102(1)(A), (C). “[A]

person is ‘regarded as having’ an impairment that substantially limits the person’s

major life activities when other people treat that person as having a substantially

limiting impairment.” Lanman v. Johnson County, 393 F.3d 1151, 1157

(10th Cir. 2004) (internal quotation marks omitted). Working qualifies as a major

life activity. Id.

       For Ms. Nealey to survive summary judgment on this claim, she “must

present some evidence that [WaterOne] believed that [s]he was significantly

restricted in the ability to perform either a class of jobs or a broad range of jobs

in various classes as compared to the average person having comparable training,

skills, and abilities.” Justice v. Crown Cork & Seal Co., 527 F.3d 1080, 1086

(10th Cir. 2008) (internal quotation marks omitted). “[O]ur focus is on

[WaterOne’s] subjective state of mind: did [it] mistakenly believe that

[Ms. Nealey] was substantially limited in performing a major life activity?” Id.

       Ms. Nealey argues that her evidence satisfies this standard. She points to

events that occurred in 2004: WaterOne’s drug-and-alcohol-policy inquiry,

                                          -10-
approval of her requests for FMLA leave, and provision of information on

disability coverage. In addition, she relies on events well after the decision not to

let her return to work for Mr. Smith: later FMLA leave, Mr. Johnson’s

maintenance of a log after she began working for him, and a human-resources

employee’s expressed concern about Ms. Nealey’s capacity to work in December

2005.

        We are not persuaded. The record does not support an inference that in

2004 WaterOne perceived Ms. Nealey as being significantly restricted from

performing a class of jobs or range of jobs. Most tellingly, WaterOne

consistently offered Ms Nealey other full-time positions (at the same level of pay

and benefits as her previous position) after she was told that she could not return

to work for Mr. Smith. Neither the approval of her FMLA requests nor the

suggestion of disability insurance can in themselves support an inference that

WaterOne regarded her as disabled for ADA purposes. See Berry v. T-Mobile

USA, Inc., 490 F.3d 1211, 1219-20 & n.8 (10th Cir. 2007). Finally, we do not

believe that the events after Ms. Nealey started at her new position in any way

supports her contention that WaterOne believed her to be disabled in 2004. In

sum, Ms. Nealey’s evidence does not establish genuine questions of material fact

relating to her prima facie case of disability discrimination.




                                         -11-
Retaliation Claims

      Ms. Nealey also makes a series of retaliation claims, asserting that

WaterOne retaliated against her for seeking FMLA leave and for filing claims of

age and disability discrimination with the EEOC. For a prima facie case of

retaliation, Ms. Nealey must show that “(1) she engaged in protected [activity];

(2) she suffered an adverse employment action; and (3) there is a causal

connection between the protected activity and the adverse employment action.”

Fye v. Okla. Corp. Com’n, 516 F.3d 1217, 1227 (10th Cir. 2008) (internal

quotation marks omitted). No causal connection is apparent between

Ms. Nealey’s filing age and disability charges and the adverse employment

actions that took place over a year later. The ADEA and ADEA retaliation claims

fail for lack of a prima facie case.

      As for FMLA retaliation, temporal proximity exists between Ms. Nealey’s

leave requests and her termination. Ms. Nealey therefore established a prima

facie case. WaterOne then satisfied its burden to articulate a legitimate reason for

its actions by pointing to her sleeping on the job. As a result, Ms. Nealey had to

show pretext. “To raise a fact issue of pretext,” Ms. Nealey must “present

evidence of temporal proximity plus circumstantial evidence of retaliatory

motive.” Metzler, 464 F.3d at 1172. “[T]his court has refused to allow even very

close temporal proximity to operate as a proxy for the evidentiary requirement




                                        -12-
that the plaintiff demonstrate pretext.” Id. (internal quotation marks and

alteration omitted).

      As additional circumstantial evidence of pretext, Ms. Nealey stresses

WaterOne’s knowledge that she was taking pain medication that could cause

drowsiness and Mr. Johnson’s “keeping a secret log on her – and only her.”

Aplt. Br. at 29. But these two facts, even considered in conjunction with

evidence argued as pretext in other sections of Ms. Nealey’s brief, do not suggest

that WaterOne’s expressed reasons are unworthy of credence. Ms. Nealey has not

raised a genuine issue of material fact undermining WaterOne’s stated reasons for

disciplining her and terminating her employment.

FMLA Interference Claim

      “Under the FMLA’s terms, covered employees are entitled “to take

reasonable leave for medical reasons. . . ,’ and affected employers may not

interfere with or discriminate against an employee seeking to exercise those

rights.” Orr v. City of Albuquerque, 531 F.3d 1210, 1213 (10th Cir. 2008)

(quoting 29 U.S.C. §§ 2601(b)(2), 2615(a)). Ms. Nealey asserts that she has made

a sufficient showing that WaterOne interfered with her FMLA rights when it

disciplined and discharged her.

      To prevail on this theory, she “must demonstrate: (1) that . . . she was

entitled to FMLA leave, (2) that some adverse action by the employer interfered

with . . . her right to take FMLA leave, and (3) that the employer’s action was

                                        -13-
related to the exercise or attempted exercise of [her] FMLA rights.” Metzler,

464 F.3d at 1180 (alteration and internal quotation marks omitted). The

employer’s actual intent is not relevant. Id.

      Ms. Nealey has demonstrated the first two elements of her claim--she was

entitled to FMLA leave and she was disciplined and discharged before she could

take all her accrued leave. Thus, our analysis centers on whether she has come

forward with evidence of a causal relationship between her termination and her

FMLA leave. Ms. Nealey argues that she “has easily raised genuine issues of

material fact for a jury on . . . her claim.” Aplt Br. at 28. But the record shows

that WaterOne consistently authorized extensive FMLA leave over the course of

Ms. Nealey’s employment, and that she was frequently advised to take FMLA

leave rather than sleep on the job. Moreover, the record of poor performance

(sleeping on the job) was remarkable. An employee who requests FMLA leave

has “no greater protection against . . . her employment being terminated for

reasons not related to . . . her FMLA request than . . . she did before submitting

the request” and “has no greater rights than an employee who remains at work.”

Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1262 (10th Cir. 1998). We do

not think that it would be reasonable to infer from the record in this case that

Ms. Nealey was fired because she requested or took FMLA leave. Summary

judgment is the appropriate disposition of Ms. Nealey FMLA-interference claim.




                                         -14-
                   CONCLUSION

We AFFIRM the judgment of the district court.


                                    Entered for the Court


                                    Harris L Hartz
                                    Circuit Judge




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