06-3084 - Lynn R. Zwygart, Appellant v. Board of County Commissioners of Jefferson County, Kansas
U.S. Tenth Circuit Court of Appeals
(March 7, 2007)

Briefs

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Case Summary (prepared at Washburn Law)

Procedure

Appeal from a grant of summary judgment issued by the United States District Court for the district of Kansas. Appellant seeks reversal of the grant of summary judgment and further asks that the case be remanded for trial on both of his claims.

Facts

Zwygart (Appellant) was a truck driver for the Jefferson County, Kansas Road Department. Appellant underwent open heart surgery in 2001 to replace an aortic valve. His employment with the County was initially terminated in 2002 for poor performance and excessive absences. Following the initial termination, Appellant filed a grievance (in accord with procedures set forth in his employee handbook) asking to be reinstated. Following the filing of his grievance, Appellant was reinstated with the following conditions: (1) that all use of sick leave required a doctor's slip, (2) for no reason would leave without pay be granted, and (3) any violation of these conditions would result in immediate termination. Appellant and his attorney agreed to these conditions.

In May of 2003, Appellant was diagnosed as suffering from a bacterial infection. As a result, Appellant supplied the Department with a doctor's note indicating that "[Appellant] should be off work until further notice." In September of 2003 Appellant underwent another heart surgery to repair a leak around his new prosthetic valve caused by the bacterial infection. Shortly after the September 2003 surgery Appellant exhausted his vacation time, sick leave, shared sick leave (donated from co-workers under a department policy), and FMLA leave. From mid-September 2003 until October 31, 2003 Appellant's absences from work were recorded "without pay."

On October 31, 2003 Appellant received a letter from Richard Teaford (county engineer) informing him he was terminated. As of Oct. 31, 2003, Appellant had not been released to work by a doctor's slip. Appellant's doctor would not grant him a slip to return to work until November 12, 2003. Following this Oct. 31, 2003 termination Appellant again filed a grievance (in accord with his employee handbook) with the County. Following a grievance hearing held on December 1, 2003 (where Appellant was represented by counsel and stated to the empanelled grievance board that he could return to work) the board recommended that Appellant's termination be upheld.

Appellant then brought four claims against the Board of County Commissioners of Jefferson County: (1) wrongful discharge in violation of the ADA(1), (2) failure to accommodate in violation of the ADA, (3) retaliation in violation of ERISA, and (4) deprivation of property interest without due process in violation of the Fourteenth Amendment and 42 U.S.C. § 1983. Appellant abandoned his ERISA claim in his pretrial order. The District Court granted Appellee's motion for summary judgment in regards to Appellant's ADA and due process claims. Appellant appeals that decision.

Issues

  1. Whether Appellant's wrongful discharge claim under the ADA raises a genuine issue of material fact.
  2. Whether Appellant's due process claim under § 1983 raises a genuine issue of material fact?

Appellant's Arguments

  1. Appellant argues that Appellee wrongfully discharged him because of his disability, in violation of the ADA. Appellant argues that all three elements to establish a prima facie case under the ADA are met. Those elements include: (1) he was "disabled" within the meaning of the ADA; (2) he was "qualified," i.e. he was able to perform the essential functions of his job, with or without accommodation; and (3) the [Appellee] discriminated against him because of his disability. Appellant argues that all three elements are satisfied.(2) Moreover, Appellant argues that a reasonable jury could conclude that the final two elements are satisfied. As a result, Appellant argues that he raises a genuine issue of material fact.
  2. Appellant contends that he had an implied-in-fact contract of continued employment with the County based upon the policies approved by the Board of County Commissioners and set forth in the Employee Handbook. Second, Appellant avers that "under Kansas law, summary judgment remains 'rarely appropriate' in implied contract cases because of the necessity of determining both parties' subjective intent to form a contract."(3) Appellant argues that a reasonable jury could find that an implied contract of continued employment did exist.

Appellee's Arguments

  1. Appellee argues that Appellant's first claim, that he was discharged because of his disability (in violation of the ADA), must fail because the Appellant cannot establish a prima facie case of disability discrimination because he cannot show that he was "disabled" under the ADA. Moreover, Appellee states that Appellant alleged only that he had a record of an impairment that substantially limited the major life activity of working as a truck driver. Appellant failed to show either (1) that working as a truck driver was a major life activity or (2) that he was substantially limited in so working.
  2. Appellee argues that Appellant's second claim, that he was deprived of a property interest in continued employment without due process, also must fail because Appellant was an at-will employee and did not establish that he had a property interest in continued employment. Moreover, Appellant's allegation that the County's policy regarding unpaid leave somehow created a right to continued employment was unsupported.

Footnote

1. Americans with Disabilities Act ("ADA").

2. The US District Court for the District of Kansas found that Appellant failed to meet the final two elements in establishing a prima facie case. Accordingly, the District Court granted summary judgment.

3. Anglemeyer v. Hamilton County Hosp., 58 F.3d 533, 537 (10th Cir. 1995) (citing Brown v. United Methodist Homes for the Aged, 249 Kan. 124 (1992)).