                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                September 18, 2008
                           FOR THE TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court


    JOANNE DIXSON-THOMAS,

               Plaintiff-Appellant,

    v.                                                  No. 07-6249
                                                (D.C. No. 5:06-CV-00951-W)
    OKLAHOMA COUNTY BOARD OF                           (W.D. Okla.)
    COUNTY COMMISSIONERS,

               Defendant-Appellee.


                            ORDER AND JUDGMENT *


Before HARTZ, EBEL, and O’BRIEN, Circuit Judges.



         Plaintiff Joanne Dixson-Thomas appeals from the entry of summary

judgment for her former employer, defendant Oklahoma County Board of County

Commissioners, in this wrongful termination suit alleging discrimination under

the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, and



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
retaliatory discharge under the Oklahoma Workers’ Compensation statute,

see Okla. Stat. tit. 85, § 5(A) . The district court held that the ADA claim failed

for two reasons: Ms. Dixon-Thomas did not make a prima facie showing that she

had a disability within the meaning of 42 U.S.C. § 12102(2); and the Board had,

in any event, terminated her for a reason—extended absence from a key position

in the County Court clerk’s office—that did not violate the ADA. The court held

that the latter reason for termination was likewise fatal to the § 5(A) claim and

that Ms. Dixson-Thomas had failed to demonstrate a triable issue as to whether

that reason was pretextual. On de novo review, see Justice v. Crown Cork & Seal

Co., 527 F.3d 1080, 1085 (10th Cir. 2008); Blackwell v. Shelter Mut. Ins. Co.,

109 F.3d 1550, 1553 (10th Cir. 1997), we affirm.

                             FACTUAL BACKGROUND

         The undisputed historical facts are set out in the district court’s order. We

summarize the facts that frame the issues to be resolved on this appeal.

Additional facts will later be introduced as necessary to our analysis of each

issue.

         Ms. Dixson-Thomas worked at the Oklahoma County District Court Clerk’s

office as head of the docketing department, where she supervised docketing

personnel and also did keyboard entry herself. In accordance with written policy,

this was considered a “key” position that could not be left unfilled for an

extended period. On October 10, 2000, Ms. Dixson-Thomas did not report to

                                           -2-
work because of a problem with her wrist and arm, and has not returned to work

since. She sent a letter dated October 17 to her supervisor, James Merritt, telling

him that her doctor had instructed her to stay off work until various medical tests

were completed. Merritt responded by asking for a more definitive return date,

requesting that she periodically report in writing on her status and intent to return

to work, and advising that she held a key-employee position that would have to be

announced and filled within two weeks.

      After Ms. Dixson-Thomas had been off work for over a month, she and

Merritt met to discuss the situation. At the meeting she was unable to confirm

whether she could return to work to perform her supervisory duties, nor would

Merritt confirm whether she had been terminated, though he did say that he would

be accepting applications for head of the docketing department. No one was hired

for the position, however, and Merritt temporarily assumed the supervisory duties

of the position. As requested, Ms. Dixson-Thomas periodically reported her

medical status and her continued intention to return to work. In the meantime,

she also filed a workers’ compensation claim, specifying “carpal tunnel” as a

cumulative injury resulting from “repetitive typing and lifting,” on November 27,

2000. Aplt. App. at 293 (internal quotation marks omitted).

      By letter dated January 23, 2001, Merritt asked Ms. Dixson-Thomas to

consult with her doctor to determine whether she could return to work and

perform her supervisory duties or answer telephone calls. If she were approved

                                          -3-
for limited duty, he wanted her doctor to specify her limitations and capabilities

with regard to giving verbal directions to employees, answering calls, and sitting

and/or standing for eight hours. She submitted materials reflecting that her doctor

had put her on temporary total disability (TTD). Under the workers’

compensation scheme, this precluded her employer from terminating her “solely

on the basis of absence from work.” Okla. Stat. tit. 85, § 5(B).

      That is how matters stood for some two years. The clerk’s office was

restructured, and docketing was combined with another department. This allowed

supervisory duties once performed by Ms. Dixson-Thomas to be shifted to other

personnel.

      On February 27, 2003, Ms. Dixson-Thomas was released to work with

restrictions, including limited lifting, restricted pushing/pulling, and reduced

repetitive movements. She informed Merritt and inquired about returning to

work. He replied that she would need to submit an application and that he could

not discuss employment until her TTD status and workers’ compensation claim

were resolved. She did not submit an application. A few months later she filed

an administrative charge of discrimination citing disability as one of the grounds.

      Ms. Dixson-Thomas settled her workers’ compensation claim on

November 18, 2003, and Merritt was advised of the settlement no later than

December 30, 2003. More than a month later, in response to an inquiry from

Ms. Dixson-Thomas about a benefits matter, the human resources department

                                          -4-
informed her that her employment with the clerk’s office had been terminated

effective December 31, 2003, over three years after she had first left work.

                                  DISCUSSION

      An indefinite or excessive absence is a legitimate reason for termination

under both the ADA, see Boykin v. ATC/VanCom of Colo., L.P., 247 F.3d 1061,

1065 (10th Cir. 2001) (citing cases), and state law (provided that the employee is

no longer on TTD and thereby unconditionally protected by Okla. State. tit. 85,

§ 5(B)), see Upton v. Okla. ex rel. Dep’t of Corr., 9 P.3d 84, 88 (Okla. 2000),

superseded by statute on other grounds as stated in Glasco v. Okla. Dep’t of

Corr., 188 P.3d 177, 183-84 (Okla. 2008); Pierce v. Franklin Elec. Co., 737 P.2d

921, 924 (Okla. 1987), superseded by statute on other grounds as stated in Upton,

9 P.3d at 86. Ms. Dixson-Thomas acknowledges that “[t]hree years is admittedly

a long time,” but argues that her absence was not voluntary and therefore cannot

be deemed a “job abandonment.” Aplt. Br. at 19-20. We have never held,

however, that excessive absence justifies termination only if the employee has

“abandoned” her job.

      The burden on the plaintiff to overcome a facially legitimate justification

for termination is the same under federal and state law: she must show that the

justification was pretextual, either by direct evidence of a wrongful motive or

indirectly by evidence that the proffered justification is unworthy of belief. See

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Buckner v. Gen.

                                         -5-
Motors Corp., 760 P.2d 803, 807 (Okla. 1988). Indirect evidence may be a

showing of “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 and hence

infer that the employer did not act for the asserted non-discriminatory reasons.”

Trujillo v. PacifiCorp, 524 F.3d 1149, 1158 (10th Cir. 2008) (internal quotation

marks omitted). In assessing whether Ms. Dixson-Thomas has presented evidence

creating a genuine issue of material fact, see Fed. R. Civ. P. 56(c), we must keep

in mind the compelling nature of the Board’s stated justification for her

termination—her three-year absence from a key position.

      Ms. Dixson-Thomas contends that the pretextual nature of the Board’s

asserted justification is revealed by “evidence of inconsistency and disturbing

procedural irregularities” regarding her termination. As for inconsistency, she

notes that the Board has in these proceedings stated both that “the County

terminated her on December 31, 2003,” Aplt. App. at 8 (Defendant’s Motion for

Summary Judgment), and that “[she] was not terminated,” id. at 252 (Defendant’s

Answers to Plaintiff’s Interrogatories). But the unprofessional game of semantics

played by the Board’s counsel in answering interrogatories does not undermine

the client’s justification for termination.

      As for procedural irregularities, Ms. Dixson-Thomas complains that (1) her

medical release from TTD was treated as a nullity during the pendency of the

                                              -6-
workers’ compensation proceedings, and (2) she was already being told that she

would have to apply for work in the clerk’s office when her employment status

still had not been resolved. On the first point she says:

      It is important to note that Mr. Merritt told Ms. [Dixson-]Thomas she
      could not return after [February 27, 2003] because she was “still
      TTD.” She immediately clarified that she was no longer TTD and
      referred to the provided doctor release. Merritt told her there was
      nothing he could do and she should “talk to her attorney” and have
      her attorney “contact the District Attorney.” Further, he advised her
      to refrain from contacting him or other representatives of the Court
      Clerk’s office. . . . “Your case is not over even though you have
      been released by the doctor. Because the case is not completely
      settled we consider you to be TTD and there is nothing I can do until
      it is over.” Then, just one day after Mr. Merritt learned of the
      settlement of the WCC [claim], Ms. [Dixson-]Thomas is summarily
      terminated!

Aplt. Br. at 20-21 (record citations omitted). And on the second point she argues:

             How can an existing employee be forced to “put in an
      application” as a condition for continued employment all the while
      not being told if she was fired or not fired yet remaining an employee
      throughout the pendency of her underlying WCC case? The lack of
      communication as to job status lends further credence to the pretext
      argument. A law abiding employer would tell the employee exactly
      what her job status was upon her release [from TTD]. There was no
      reason to hide her job status from her. Doing so was disingenuous,
      contradictory, and arguably calculated to disguise unlawful
      discrimination. The death knell for summary adjudication purposes
      was firing this employee just one day after learning she had settled
      her [claim], and this after keeping her in the dark for a period of ten
      months leading up to the discharge.

Id. at 22-23.

      We are not persuaded that these points can demonstrate pretext. As noted

earlier, by 2003 Ms. Dixson-Thomas had been absent from a key position in the

                                          -7-
clerk’s office for over two years, during which time the office had been

restructured and her position abolished. Although this would clearly have

justified her termination, under state workers’ compensation law she could not be

terminated until her protective TTD status expired. This period of postponed

resolution continued beyond the date Ms. Dixson-Thomas obtained a work release

from her doctor, because the clerk’s office extended TTD protective status until

the conclusion of workers’ compensation proceedings. In this context Merritt’s

statement that the matter belonged in the hands of the parties’ attorneys made

perfect sense. For him to proceed on his own before the lawsuit was resolved

would have risked inadvertent violation of Ms. Dixson-Thomas’s rights or

imposition on the clerk’s office of some unintended responsibility. The statement

neither contradicts the proffered explanation for Ms. Dixson-Thomas’s

termination nor otherwise suggests an improper motive for the termination.

Likewise, the timing of the termination is not the least suspicious. It was the

earliest that the termination was clearly permissible under the workers’

compensation statute. Nor could pretext be inferred from the suggestion that

Ms. Dixson-Thomas submit an application or from the failure to tell her whether

or not she had been fired. Her status was complicated by both her being absent

from work and the requirements of the workers’ compensation statute. An

inability to resolve that status is not surprising, and we fail to see how the

inability suggests an improper motive.

                                          -8-
      For “direct” evidence of an improper motive, Ms. Dixson-Thomas relies on

allegations of hostility toward her workers’ compensation claim—in particular,

Merritt’s statement, before he knew that she had filed a claim, “How do I know

that it was an on the job injury? As far as I know, you could have fell off a

horse.” Aplt. App. at 102, 111 (internal quotation marks omitted). She insists

that “[t]he tone and tenor of Mr. Merritt’s comment was calculated to intimidate

[her] and discourage her from pursuing a job injury claim.” Aplt. Br. at 5. But

there is no evidence of any effort to deny Ms. Dixson-Thomas’s workers’

compensation claim. Indeed, when specifically asked in her deposition if her

employer had fought against her claim for benefits, she could say only that she

did not know. 1 What we do know from our record is that her claim was resolved

by a settlement that gave her a $12,800 benefit and a $3,200 fee award.




1
      She also refers to two clerk’s office documents that she says downplay the
obvious job-related nature of her injury. See Aplt. Br. at 17. Neither of these,
however, suggests an improper effort to oppose her claim. One is a short memo
written by Merritt when he received notice of her claim, summarizing the few
relevant dates and facts of which he was then aware. It recites that the last day
she worked was October 6, 2000; that her workers’ compensation form specified
October 10, 2000, as the day her injury occurred; and that she had not previously
reported a work-related injury. There is no evidence that this memo was
submitted in opposition to her claim. And, in any event, it simply recites
objective facts. The other is simply a note on a doctor’s statement that
Ms. Dixson-Thomas had submitted, stating that “[t]his doctor’s statement is dated
2 days before any claim by [her] that her condition was ‘workers’ comp’ related.
She signed her claim on Nov 22, 2000.” Aplt. App at 217. Again, this does not
show some wrongful effort to oppose her claim.

                                         -9-
      In sum, we agree with the district court that Ms. Dixson-Thomas failed to

present a triable issue of improper motive. For this reason, we need not reach the

district court’s alternative rationale for rejecting the ADA claim—namely, that

Ms. Dixson-Thomas had no disability under 42 U.S.C. § 12102(2)(C). 2

      The judgment of the district court is AFFIRMED.



                                                    Entered for the Court



                                                    Harris L Hartz
                                                    Circuit Judge




2
       Under § 12102(2), as relevant here, “[t]he term ‘disability’ means . . . (A) a
physical or mental impairment that substantially limits one or more of the major
life activities of such individual; . . . or (C) being regarded as having such an
impairment.” Ms. Dixson-Thomas alleged that she was regarded as having an
impairment that substantially limited her major life activity of working.


                                        -10-
