Garland's Digest
on employment discrimination law
online since 1997
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Disclaimer: The case on which this summary is based may no longer be current law. Also, if the case was decided on summary judgment, the court recited the "facts" in the light most favorable to the non-movant, which may not be the true facts.


Mere physical exertion is not a major life activity.

MacKenzie v. City and County of Denver, 414 F.3d 1266 (10th Cir. July 14, 2005) - This is an ADA and ADEA action alleging disability and age discrimination. Rita MacKenzie, age 64 at the time her lawsuit was filed, began working for Denver's Health and Hospital Authority in 1986. In 1988, she began working as a clerk and receptionist at Denver's Infectious Diseases Clinic. Her supervisor was Patrick Gourley. Over time, she received complaints from staff and patients about rudeness. On September 1, 1995, she was transferred to the Tuberculosis Clinic where she had a new supervisor. However, she continued to receive complaints from staff and patients. She ultimately resigned on December 28, 1998. The district court granted summary judgment for Denver. The Tenth Circuit affirms. With respect to her ADA claims, she failed to show she was disabled. Her heart condition is a physical impairment. She alleges this impairment substantially limited two major life activities: (1) physical exertion and (2) stress-related work. Physical exertion is not a major life activity. With respect to "stress-related work," she mainly refers to actions of her former supervisor, Gourley; but the major life activity of working cannot be substantially impaired if the plaintiff cannot work under a certain supervisor because of the stress and anxiety it causes. Moreover, even if she could show she had a disability, she could not show that she suffered discrimination due to her disability. Therefore, her ADA claim fails. Next, with respect to her ADEA disparate treatment claims, she failed to show that similarly situated younger employees were treated more favorably. With respect to her ADEA failure to promote claim, she failed to show that Denver's proffered reason for selecting a younger employee was pretextual. Next, with respect to her ADEA retaliation claims, the fact that her supervisor may have given her the "silent treatment" is not an adverse employment action. However, a "below expectations" job performance rating and a one-day suspension are adverse employment actions, but these actions occurred five months or more after she engaged in protected activity. This temporal proximity, by itself, is insufficient to establish a causal link. Next, MacKenzie alleges she was subjected to a hostile work environment because of her age. Her evidence of pervasive or severe harassment consists of Gourley's: (1) passive or silent treatment of her; (2) failure to diligently and timely inform her of complaints made against her; and (3) age-related remarks. With respect to the passive treatment, the Court says she sought this silence when she filed her first grievance against him. With respect to informing her of complaints, she was always given an opportunity to respond to the complaints made against her. With respect to age-related remarks, the record demonstrates mutual bantering between her and Gourley. In addition, once she complained about Gourley's conduct, her employer's response was prompt, adequate and effective as a matter of law. Finally, she alleges that she was constructively discharged. A finding of constructive discharge depends upon whether a reasonable person would view the working conditions as intolerable, not upon the subjective view of the employee-claimant. The Court finds insufficient evidence to support a claim of constructive discharge.



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2005 Garland's Digest

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