Leon John Kulasa v. Wyndham Vacation Rentals North America, LLC

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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LEON JOHN KULASA,
Plaintiff - Appellant,
v.
WYNDHAM VACATION RENTALS
NORTH AMERICA, LLC,
Defendant - Appellee.
No. 20-1402
(D.C. No. 1:19-CV-00561-NRN)
(D. Colo.)
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ORDER AND JUDGMENT*
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Before McHUGH, BALDOCK, and MORITZ, Circuit Judges.
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Leon John Kulasa, proceeding pro se, appeals from the district court’s grant of
summary judgment to his former employer, Wyndham Vacation Rentals North
America, LLC, in his suit under the Americans with Disabilities Act (ADA), the
Colorado Anti-Discrimination Act (CADA), and the Colorado Wage Claim Act.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
August 27, 2021
Christopher M. Wolpert
Clerk of Court
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BACKGROUND
In May 2017, Wyndham promoted Mr. Kulasa from a Guest Services Agent in
Keystone, Colorado, to a P.M. Operations Manager in Breckenridge, Colorado. The
Operations Manager position was new, but it was intended to involve oversight and
support of several departments, including guest services, housekeeping, and
maintenance. The supervisors for the position created a training program, deciding to
start Mr. Kulasa at the front desk. But he was not happy there. Believing that the
Operations Manager position did not require any significant front-desk duties, he
complained that the work was “boring and stagnate,” R. Vol. II at 60, and “was
having a negative effect on his mental condition,” id. at 59. For their part, his
supervisors were dissatisfied with his performance and were unwilling to move him
until they believed he was competent to perform the front-desk duties. After meeting
with him in July regarding his work and his frustrations with the job, on July 25, they
issued him a final written warning and corrective action notice.
Things did not improve in August, and Mr. Kulasa’s supervisors remained
unwilling to advance him to other areas of training. Due to his mental health,
Mr. Kulasa went on Family and Medical Leave Act (FMLA) leave from early
September through early December. For another several weeks, he was on paid
administrative leave. He had been undergoing testing, and in December, he was
diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). 1
1 Years earlier, Mr. Kulasa had been diagnosed with bipolar disorder. The
December 2017 report diagnosing ADHD cast doubt on that earlier diagnosis. In any
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Mr. Kulasa returned to work on January 11, 2018, retaining the Operations
Manager title and pay, but reporting to only one supervisor. Rather than returning
him to the front desk, his supervisor initially assigned him the duties of a
Housekeeping Driver, with a plan to review his duties every two weeks. Mr. Kulasa
believed the assignment to be a demotion from the Operations Manager position.
Within a matter of weeks, his supervisor had received multiple complaints about his
performance. Wyndham terminated Mr. Kulasa’s employment on March 12, 2018.
Mr. Kulasa brought suit under the ADA and the CADA, alleging
discrimination, failure to accommodate, and retaliation because of his ADHD. In an
amended complaint, he added a claim for unpaid compensation and reimbursement
under the Colorado Wage Claim Act. Wyndham moved for summary judgment.
During briefing, Mr. Kulasa further suggested he might have a claim for retaliation in
violation of the FMLA.
The district court—a magistrate judge presiding by consent—granted summary
judgment to Wyndham on all claims. Because Mr. Kulasa failed to controvert
Wyndham’s statement of undisputed facts, it considered those facts to be undisputed
pursuant to Fed. R. Civ. P. 56(e)(2). Regarding the disability claims, the district
court held that Mr. Kulasa failed to establish a violation of the ADA or the CADA.
He failed to establish that he has a disability, because he merely alleged that he had
event, we do not consider bipolar disorder because Mr. Kulasa’s amended complaint
identified his disability as ADHD. And consistent with the pleadings, the district
court considered only ADHD in evaluating disability.
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ADHD without showing how it substantially affected a major life activity. Further,
he failed to present evidence that he ever notified Wyndham of his ADHD, or that he
ever requested a reasonable accommodation to assist him with his ADHD. As for
retaliation, he failed to identify any protected activity under the ADA or the CADA.
Regarding the potential FMLA retaliation claim, the district court noted that
Mr. Kulasa’s amended complaint did not plead such a claim. But giving him the
benefit of liberal construction, the court considered it anyway. It held Mr. Kulasa
failed to show he was demoted upon his return in January 2018. And Wyndham
identified several legitimate, non-discriminatory and non-retaliatory reasons for
terminating his employment.
Finally, the district court held the Wage Claim Act claims were subject to a
two-year limitations period. Some claims thus were untimely. As for the timely
claims, the evidence showed that Wyndham paid Mr. Kulasa for the overtime and
on-call time he worked before becoming the P.M. Operations Manager (which was an
exempt position), and he failed to submit evidence to support his allegations that he
was not reimbursed for cell phone and vehicle expenses.
DISCUSSION
We review the district court’s grant of summary judgment de novo, viewing
the evidence in the light most favorable to Mr. Kulasa as the non-moving party.
See Bird v. W. Valley City, 832 F.3d 1188, 1199 (10th Cir. 2016). Summary
judgment is appropriate when “the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.”
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Fed. R. Civ. P. 56(a). We afford Mr. Kulasa’s pro se filings a liberal construction.
See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
But we do not act as his counsel, and he must “follow the same rules of procedure
that govern other litigants.” Id. (internal quotation marks omitted).
Mr. Kulasa argues that the district court improperly considered the summary
judgment materials (including deeming the facts as undisputed under Rule 56(e),
failing to review his summary judgment brief and exhibits, and failing to provide him
notice of what evidence he needed to introduce). Regarding the merits, he asserts
that the district court erred in determining: (1) he was not demoted upon his return to
work in January 2018, and he had not established a FMLA retaliation claim; (2) he
failed to establish he has a disability; (3) Wyndham showed it terminated his
employment for legitimate, non-discriminatory and non-retaliatory reasons; (4) he
failed to show that he requested a reasonable accommodation; and (5) the wage and
reimbursement claims were time-barred in part and meritless in remaining part. We
disagree that the district court erred either procedurally or substantively.
The district court gave Mr. Kulasa, as a pro se party, a great deal of latitude.
For example, it allowed him to belatedly supplement his summary judgment
materials, and it analyzed the FMLA retaliation claim he raised during the summary
judgment proceedings, even though his amended complaint did not present that
claim. Given that Mr. Kulasa did not properly controvert Wyndham’s statement of
facts, the court acted within the rules in deeming those facts admitted. See Fed. R.
Civ. P. 56(e)(2) (“If a party . . . fails to properly address another party’s assertion of
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fact . . . the court may . . . consider the fact undisputed for purposes of the [summary
judgment] motion.”). The court was not required to act as Mr. Kulasa’s counsel and
advise him how to support his case. See Garrett, 425 F.3d at 840. And contrary to
Mr. Kulasa’s accusation that the court ignored his materials, the summary judgment
order repeatedly referred to his arguments and exhibits.
As for the merits arguments, the district court did not err in holding that
Mr. Kulasa failed to establish he has a disability, a required element of his
discrimination and failure to accommodate claims, see Lincoln v. BNSF Ry. Co.,
900 F.3d 1166, 1192, 1204 (10th Cir. 2018). 2 Mr. Kulasa argues that the district
court did not apply the updated standards of the ADA Amendments Act of 2008
(ADAAA). Under those standards, however, to proceed under the actual disability
prong he must show that he has “a physical or mental impairment that substantially
limits one or more major life activities,” 42 U.S.C. § 12102(1)(A); see also Tesone v.
Empire Mktg. Strategies, 942 F.3d 979, 995 (10th Cir. 2019). He failed to adequately
establish any limitations arose out of his ADHD. Further, although Mr. Kulasa
argues that he can proceed under the alternate “record of” and “regarded as”
definitions of disability, see 42 U.S.C. § 12102(1)(B), (C), he did not make those
arguments in the district court, see R. Vol. II at 317 n.2 (“Mr. Kulasa does not
contend that he had a record of an impairment or that Wyndham regarded him as
2 Noting that the ADA and the CADA apply the same standards, the district
court analyzed the claims under both statues together. The parties do not challenge
that approach.
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impaired.”). We do not consider arguments not made, or made only fleetingly,
before the district court. See Truman v. Orem City, 1 F.4th 1227, 1244 (10th Cir.
2021).
We also see no error in the district court’s determinations that there was no
genuine issue of material fact as to whether Wyndham demoted Mr. Kulasa upon his
return in January 2018 and whether it terminated his employment for reasons
unconnected to his FMLA leave; that the wage and reimbursement claims were
subject to a two-year limitations period; and that the timely wage and reimbursement
claims could not survive summary judgment.
CONCLUSION
We affirm the judgment for substantially the reasons set forth in the district
court’s order filed on October 8, 2020. We deny Mr. Kulasa’s motion to file a
corrected/substitute opening brief, but we grant his motion to proceed without
prepayment of costs and fees.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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