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Dinse v. Carlisle Foodservice Products Inc.

United States Court of Appeals, Tenth Circuit

November 6, 2013

DOUGLAS J. DINSE, Plaintiff - Appellant,
v.
CARLISLE FOODSERVICE PRODUCTS INCORPORATED, Defendant-Appellee.

D.C. No. 5:11-CV-00905-HE, W.D. Okla.

Before TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges.

ORDER AND JUDGMENT [*]

JEROME A. HOLMES Circuit Judge

Plaintiff-Appellant Douglas Dinse filed suit against his former employer Defendant-Appellee Carlisle Foodservice Products, Inc. ("Carlisle"), alleging that Carlisle failed to provide him a reasonable accommodation for his disability in violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101–12213. The district granted summary judgment to Carlisle because there was no evidence that Mr. Dinse requested a reasonable accommodation from Carlisle, which is a prerequisite to Carlisle having a legal duty to provide one. Mr. Dinse appeals from the district court's decision, arguing that there are factual disputes regarding whether he adequately requested a reasonable accommodation that preclude a grant of summary judgment. For the reasons that follow, we affirm the district court's decision.

I

A

Mr. Dinse was hired by Carlisle as a project engineer in September 2008.[1]As a project engineer, Mr. Dinse was required to perform numerous tasks, including the timely drafting of Engineering Change Notices and the completion of weekly "spec assignments." Throughout his employment with Carlisle, Mr. Dinse's two supervisors were Greg Davis, his immediate supervisor, and Martin Benning, the Director of Engineering.

During this time, Mr. Dinse suffered from several maladies, including diabetes, a heart condition, spinal issues, and avascular necrosis, which is a degenerative hip condition. According to Mr. Dinse, Messrs. Davis and Benning were "aware" of his health issues as early as December 2008, and "it was visually obvious to . . . [them both] that [he] was in severe pain." Aplt. App. at 62 (Aff. of Douglas Dinse, dated May 1, 2012). Carlisle's awareness of these conditions, says Mr. Dinse, also stemmed from his regular need for sick leave to attend doctor appointments and physical therapy and because his avascular necrosis required him to walk with a cane.

Mr. Dinse's work performance was satisfactory through March 2009. Not long thereafter, however, Mr. Dinse's health issues began to affect his job performance, despite his efforts to stay current on his work by working late and on the weekends. According to Mr. Dinse, his disability, the pain it caused, and the various pain medications he was prescribed made it difficult to focus and made him extremely tired. He acknowledged that this mental fatigue prevented him from timely completing his work assignments.

In June 2009, Mr. Davis provided Mr. Dinse with a written notice that detailed Carlisle's concerns with Mr. Dinse's work performance, including the fact that he was eleven weeks behind on his spec assignments. The notice indicated that Mr. Dinse needed to, among other things, catch up on his assignments and that he could be terminated if his work did not significantly improve.

Mr. Davis met with Mr. Dinse in July 2009 to discuss his work performance. Mr. Dinse was informed that, although his performance had somewhat improved, his productivity still needed improvement because he was seventeen weeks behind on his spec assignments and had not made any progress toward catching up. Mr. Davis had a third and final meeting with Mr. Dinse, in August 2009, at which point Mr. Dinse was twenty weeks behind on his spec assignments.

A couple of days before Carlisle terminated Mr. Dinse's employment, he informed his supervisors that he was going to need to undergo surgery.[2] Because Mr. Dinse would need to recover from this surgery at home, he discussed with Messrs. Davis and Benning the possibility of Carlisle providing him with a laptop during the post-surgery recovery period, so that he could begin working sooner than otherwise would be possible. As events unfolded, however, the occasion never arose for Carlisle to provide a laptop to Mr. Dinse. Specifically, on August 21, 2009, prior to the surgery, Carlisle terminated Mr. Dinse.

Following his termination, Mr. Dinse was awarded unemployment benefits by the Oklahoma Employment Securities Commission ("OESC") after it determined that he was not discharged for misconduct. Mr. Dinse also filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), and it determined that Carlisle had violated the ADA by not providing Mr. Dinse with a reasonable accommodation for his disability.

B

Mr. Dinse filed suit against Carlisle alleging that it discriminated against him in violation of the ADA by failing to provide him with a reasonable accommodation that would allow him to adequately perform the essential functions of his job. Carlisle moved for, and the district court granted, summary judgment on Mr. Dinse's reasonable-accommodation claim.

Certain aspects of Mr. Dinse's claim were undisputed. First, Carlisle did not contest that Mr. Dinse was "disabled" as defined by the ADA.[3] Second, Mr. Dinse did "not contest that he was unable to comply with his project deadlines absent an accommodation, or that doing so was an essential function of his ...


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