APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. (D.C. No. 1:11-CV-03390-MSK-KMT).
Robert M. Liechty, Cross Liechty Lane PC, Greenwood Village, Colorado, for Plaintiff - Appellant.
Alan Epstein (Thomas J. Lyons, Mark S. Ratner, and Matthew J. Hegarty, with him on the brief), Hall & Evans, L.L.C., Denver, Colorado, for Defendant - Appellee.
Before BRISCOE, Chief Judge, HARTZ and HOLMES, Circuit Judges.
HARTZ, Circuit Judge.
Plaintiff Cynthia Felkins, formerly an emergency dispatcher for the City of Lakewood, Colorado, alleges that she suffers from a condition called avascular necrosis that qualifies as a disability under the Americans with Disabilities Act (ADA), 42 U.S.C. § § 12101-12213 (2012), and that the City refused to accommodate that disability. She brought suit against the City under the Act, but the district court granted the City summary judgment. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm. Ms. Felkins's claim fails because she presented no expert medical evidence that any of her major life activities have been substantially limited by avascular necrosis.
Avascular necrosis is a rare condition that can cause bone tissue to die from poor blood supply. Ms. Felkins alleges that she suffers from the condition and that she so informed the City during her initial interview for an emergency-dispatcher job when she told her interviewers that she could not lift more than ten pounds because of her condition.
Ms. Felkins began working for the City in October 2007, resigned a month later, but was then rehired in June 2008. In December 2008 her femur fractured while she was at work. According to Ms. Felkins, she was driven to the hospital by her supervisor, Jodi Malpass, and on the way she told Ms. Malpass that her femur broke because she suffers from " a bone disease that results in the death of bone tissue due to a lack of blood supply to the bone." Aplt. App. at 66.
After her surgery Ms. Felkins called Ms. Malpass, allegedly to explain that the procedure had been more complicated than anticipated and healing would be delayed. Later that day, Ms. Malpass emailed Ms. Felkins's other supervisors, writing that the surgery " went well" and that the doctors repaired Ms. Felkins's femur using bone from a cadaver. Id. at 70. A physician assistant completed two forms related to Ms. Felkins. The first was a Family and Medical Leave Act (FMLA) document (though Ms. Felkins was not eligible for FMLA benefits) indicating that Ms. Felkins had received hospital care but did not have a chronic condition. The second was a note stating only " Return to work full duty 1/7/09." Id. at 37.
Ms. Felkins returned to work in early January 2009, using crutches or a wheelchair to get around as her femur healed. The healing femur caused significant pain. Consequently, Ms. Felkins and Ms. Malpass agreed that Ms. Felkins would work up to a full ten-hour shift gradually, starting with four hours per day and increasing the number of hours over time. In late February Ms. Felkins met with all three of her supervisors, including Ms. Malpass, to further discuss her pain issues. At no time did Ms. Felkins request a disability accommodation in the form of reduced
work hours, although she asserts that she had no reason to make the request because she believed that the City was aware of her disability and had already provided the reduced work hours as an accommodation. To support the accuracy of her belief, she states that Ms. Malpass knew that Ms. Felkins's ex-husband had to do the grocery shopping because Ms. ...