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Punt v. Kelly Services

United States Court of Appeals, Tenth Circuit

July 6, 2017

KRISTIN PUNT, Plaintiff - Appellant,


          Ralph E. Lamar, Arvada, Colorado, for Plaintiff-Appellant.

          Rick J. Patterson (Steven M.Potter, with him on the brief), of Potter, DeAgostino, O'Dea & Patterson, Auburn Hills, Michigan, for Defendant-Appellee Kelly Services, Inc.

          Austin E. Smith and Steven R. Reid of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Denver, Colorado, on the brief for Defendant-Appellee GE Control Solutions.

          Joan M. Bechtold of Sweeney & Bechtold, LLC, Denver, Colorado, filed an amici curiae brief for the National Employment Lawyers Association and the National Disability Rights Network.

          Before KELLY, McKAY, and McHUGH, Circuit Judges.

          McKAY, Circuit Judge.

         This case involves claims brought under the Americans with Disabilities Act, 42 U.S.C. § 2000e et seq., and the Genetic Information Nondiscrimination Act, 42 U.S.C. § 2000ff et seq., by a temporary employee whose assignment by a staffing agency to work as the receptionist for another business was terminated after she missed a significant amount of work while being tested for breast cancer and informed the agency that, due to her cancer, she needed to take a full week plus an additional unknown amount of time off for more tests, appointments, and radiation treatments. The district court granted summary judgment in favor of the staffing agency and the business on both of these claims. The employee now appeals that ruling, as well as the denial of her motion to compel discovery from the temporary-staffing agency.


         Defendant GE Controls Solutions is a company that designs and produces hardware, software, and other materials. To meet some of its staffing needs, GE entered into an agreement with Defendant Kelly Services, a company that provides temporary-staffing services, under which Kelly provided and assigned temporary employees to GE as needed. Under the agreement, GE could ask Kelly to remove any of its temporary employees from their assignment at GE for any reason. Kelly also had the right to cancel any employee's assignment on its own initiative.

         Plaintiff Kristin Punt was an at-will employee of Kelly. When she initially applied for employment with Kelly, she signed an employment application stating that the duration of any assignment she accepted depended on the needs of Kelly's customer and that it could be canceled at any time by Kelly or the customer. The application also stated that, upon completion of each assignment, she would notify Kelly of her availability for work. She agreed: "I understand I am responsible for maintaining regular contact with Kelly and failure to do so will indicate I have either voluntarily quit or am not actively seeking work." (Appellant's App. at 242.)

         After GE's full-time receptionist retired, GE requested that Kelly assign a temporary employee to fill that position. The human-resources director at GE informed Kelly that GE would consider Plaintiff for the receptionist assignment because Plaintiff had previously filled in for the receptionist on short-term assignments.

         Kelly assigned Plaintiff to the receptionist position at GE, and she worked there from October 24, 2011, through December 5, 2011. Shortly before she began this assignment, she had had a screening mammogram which showed suspicious microcalcifications in her right breast, and in November, while working at GE, she had a breast biopsy and was informed she had breast cancer. Plaintiff alleges that she told various GE and Kelly employees about her cancer diagnosis and her family history of breast cancer.

         When she began the receptionist assignment at GE, Plaintiff was instructed that she was to work a 40-hour work week, starting at 7:30 a.m. and ending at 4:30 p.m. each day. The "essential functions" of the receptionist job included being "physically present at the lobby/reception desk during business hours" in order to "greet[] . . . and direct[] all visitors, including vendors, clients, job candidates, customers, etc." (Id. at 409.) However, in the six weeks that Plaintiff was assigned to work as a receptionist at GE, Plaintiff never worked a full 40-hour work week. She was absent from work on six occasions, two of which corresponded with holidays, and three of which corresponded with documented medical appointments. Plaintiff's absence on November 29 is unexplained. Plaintiff was also late to work on three occasions: by 1.5 hours on October 24, by 4.5 hours on October 27, and by 3 hours on November 30. The November 30 date allegedly corresponded with an MRI appointment, but she provided no explanation for her tardiness on the other two dates. Plaintiff left work early on three occasions as well: by 30 minutes on October 27, by 1.25 hours on November 2, and by 5 hours on November 22. On November 2, Plaintiff had a follow-up mammogram appointment, and on November 22 she left work after receiving a call with her biopsy ...

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