Timothy G. Mcneel, Plaintiff-appellant, v. Public Service Company of Colorado, a Colorado Corporation,defendant-appellee, 117 F.3d 1428 (10th Cir. 1997)

Plaintiff Timothy G. McNeel appeals from the entry of summary judgment in favor of his former employer, defendant Public Service Company of Colorado ("Public Service"). Mr. McNeel contends the district court erred with respect to his claims under the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq.¹  We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.

Appellant was an employee of Public Service from 1990 until 1992. In 1990, he was suspended for one day following his dissemination of an offensive e-mail message containing religious and sexual comments about his supervisor, Susan Hawk. In 1991 he again received an official reprimand, this time for making sexist and racist remarks to clients. Hawk gave appellant an "unsatisfactory" rating on his 1991 annual performance evaluation.

Subsequently, appellant underwent liver enzyme tests. He was diagnosed with Hepatitis C, which apparently causes fatigue and loss of appetite, and may ultimately necessitate a liver transplant. Appellant discussed his medical condition and potential treatment needs with Hawk. Thereafter, he began reporting to Mark Severts, who was also aware of his illness. In appellant's 1992 performance evaluation, Severts rated him "fully competent."

A corporate reorganization occurred in April of 1992, and many positions within Public Service were revised. All but a few employees were required to reapply for "new" positions. The application process required applicants to rate the positions they sought in order of preference. Appellant applied for nine positions, none of which reported to Hawk. Four of the prospective positions reported to Thomas Currigan, four to Severts, and one to Stephen Volstad. Appellant was not selected for any of these reorganized positions and was laid off. This action ensued.

We review the district court's grant of summary judgment de novo. Webber v. Mefford, 43 F.3d 1340, 1342 (10th Cir. 1994). Summary judgment is appropriate where "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). Ultimately, the question is " 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.' " Bingaman v. Kansas City Power & Light Co., 1 F.3d 976, 980 (10th Cir. 1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)).

Appellant contends his medical condition precipitated Public Service's decision not to rehire him. Cases involving the Rehabilitation Act and the ADA are analyzed under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny. See Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997). To qualify for relief under the ADA,²  a plaintiff must establish (1) he is "disabled"; (2) he is qualified (able to perform essential functions of job with or without reasonable accommodation); and (3) the employer took adverse action on account of his disability. See White v. York Int'l Corp., 45 F.3d 357, 360-361 (10th Cir. 1995).

We assume without deciding that appellant has established a prima facie case. When such a showing is made, a presumption arises that the employer unlawfully discriminated against the employee. See Greene v. Safeway Stores, Inc., 98 F.3d 554, 558 (10th Cir. 1996) (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993)). The burden then shifts to the defendant, who can rebut the presumption by "articulat [ing] a facially nondiscriminatory reason for the adverse employment decision." Marx v. Schnuck Markets, Inc., 76 F.3d 324, 327 (10th Cir. 1996). Here, Public Service contends appellant was not rehired because other applicants had preferable qualifications and work histories. There can be little doubt that these are facially nondiscriminatory reasons for hiring one person over another. Public Service has carried its burden, thereby rebutting the presumption of discrimination.

Consequently, in order to prevail, appellant must "show that there is a genuine dispute of material fact as to whether the employer's proffered reason for the challenged action is pretextual i.e. unworthy of belief." Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995), cert. denied, 116 S. Ct. 2552 (1996). Pretext is established where a plaintiff demonstrates "that a discriminatory reason more likely motivated the employer or that the employer's proffered explanation is unworthy of credence." Marx, 76 F.3d at 327-28 (citation and quotation omitted). Upon such a showing, the case proceeds to trial. Ingels v. Thiokol Corp., 42 F.3d 616, 622 (10th Cir. 1994).

Appellant argues that Public Service's proffered reasons are pretextual, but puts forth little evidence in support of that contention. He maintains Hawk made comments which evidence disability-based discrimination. However, in order to support an inference of discrimination, appellant must demonstrate a nexus between the discriminatory remarks and the challenged action. See Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 531 (10th Cir. 1994). He is unable to do so. Hawk was not involved in the layoff decisions about which appellant complains.

With respect to Public Service management under whom appellant applied to work and who therefore have the requisite nexus under Cone, none displayed discriminatory animus. There is insufficient evidence in the record to conclude that Thomas Currigan or Stephen Volstad knew of appellant's medical condition at the time they selected others, over appellant, to fill the vacant positions.³  As a result, discriminatory intent may not be inferred. See Phelps v. Field Real Estate Co., 991 F.2d 645, 650 (10th Cir. 1993).

Mark Severts presents a closer question. It is undisputed that Severts knew of appellant's illness throughout the reorganization process. Appellant contends Severts went from being "warm and friendly" to "very distant and ... not friendly" after learning of his illness, asked on several occasions about the contagious nature of the illness,⁴  and made comments concerning "work performance and lost time."⁵  Given our review of the record, these allegations are too nebulous to stave off summary judgment.

Severts explained in detail why he selected others for the open positions, see Appellant's App. at 48-53, and appellant does not dispute that the individuals selected were "as qualified" or "more qualified" than he, id. at 133. Additionally, appellant concedes (1) Severts' knowledge of his medical condition had no impact whatsoever on the favorable performance evaluation given to him by Severts after Severts learned of his illness, id. at 80; (2) Severts was concerned about appellant's health, id. at 81-82; (3) Severts treated him in a professional manner, id. at 82; and (4) Severts never displayed an adverse reaction to appellant's illness "like [the one] from Su Hawk," id.

We agree with the district court that appellant has failed to put forth sufficient evidence indicating a genuine dispute of material fact regarding whether Public Service's proffered reasons for the challenged employment action were pretextual. This case cannot be submitted to a jury because "it is so one sided that [Public Service] must prevail as a matter of law." See Bingaman, 1 F.3d at 980.

AFFIRMED.