A. Precedents Cited
1) Appellate waiver and pro se briefing standards
The panel grounded its treatment of Mr. Hayes’s pro se appeal in Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008),
reiterating that courts construe pro se filings liberally but “cannot act as his advocate.” That framing matters: it explains why the court did not
supply missing arguments to save issues not properly presented.
The court applied Sawyers v. Norton, 962 F.3d 1270, 1286 (10th Cir. 2020), for the rule that issues not raised (or inadequately presented)
in an opening brief are “abandoned or waived.” This precedent directly drove the disposition as to Kwik Staff: because the opening brief did not argue error in the Rule 12(b)(6)
dismissal, appellate review was forfeited.
The court also invoked Sierra Club v. Okla. Gas & Elec. Co., 816 F.3d 666, 676 n.9 (10th Cir. 2016),
to reject a reply-brief attempt to resurrect arguments about late-discovered evidence and timeliness. The message is procedural but significant:
litigants cannot “hold back” core arguments until reply.
2) Summary judgment framework
For de novo review and the handling of cross-motions, the court relied on United States v. Sup. Ct. of N.M., 839 F.3d 888, 906-07 (10th Cir. 2016).
It restated that each motion is viewed in the light most favorable to the nonmovant, though it noted the analysis “collapses” where the same issues control both motions.
3) ADA proof structure and the “qualified individual” requirement
The court applied the burden-shifting model from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973),
as incorporated into ADA summary judgment practice by Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1141 (10th Cir. 2011).
Under this structure, the plaintiff must first establish a prima facie case; only then does the employer need to articulate a legitimate nondiscriminatory reason,
followed by plaintiff’s proof of pretext.
Importantly, the panel used Edmonds-Radford v. Sw. Airlines Co., 17 F.4th 975 (10th Cir. 2021), to define the elements of the prima facie cases:
both failure-to-accommodate and wrongful termination require proof that the plaintiff is disabled and qualified under the ADA,
with distinct third elements (requested reasonable accommodation; adverse action because of disability).
The court then leaned heavily on Carter v. Pathfinder Energy Servs., Inc., 662 F.3d at 1146,
for a key limitation on “part-time or modified work schedules” as an accommodation: a plaintiff must show he can still perform the job’s
essential functions while working part-time. This was the opinion’s dispositive doctrinal lever on “qualification.”
Finally, the court cited Smith v. Midland Brake, Inc., 180 F.3d 1154, 1179 (10th Cir. 1999) (en banc),
for the principle that summary judgment should be denied where genuine disputes of material fact exist as to the prima facie elements or the rebuttal/pretext stages.
Here, the panel concluded the record did not create a triable issue on the essential “qualified” and “adverse action” elements.
B. Legal Reasoning
1) The court assumed “disability” but ended the case on “qualification” and “adverse action”
The panel explicitly declined to resolve whether Mr. Hayes was “disabled” within the meaning of the ADA, choosing instead to
assume disability and employer knowledge for purposes of analysis. That choice is consequential:
it signals that even well-supported proof of impairment and notice will not salvage an ADA claim if the plaintiff cannot satisfy
the “qualified individual” requirement or show a cognizable adverse action attributable to disability discrimination.
2) Failure-to-accommodate: a schedule limitation is only “reasonable” if essential functions remain performable
Mr. Hayes’s accommodation request was effectively a part-time/modified schedule driven by an earnings cap tied to benefits eligibility.
The court acknowledged the County accommodated it for a period (including an informal “banking” of excess hours), but held the record ultimately showed
the North Annex custodial assignment required more hours than Mr. Hayes could work.
The panel treated evidence of workplace shortfalls (including a complaint about restroom cleanliness and supplies and the supervisor “taking up the slack”)
as demonstrating the practical point required by Carter: the requested schedule prevented full performance of essential functions.
Thus, Mr. Hayes failed the ADA’s “qualified individual” element, which defeated both his accommodation claim and, as discussed next, his discharge claim.
3) Wrongful termination: no “adverse employment action” by the County because Mr. Hayes was placed through a staffing firm and declined alternative work
The court also concluded Mr. Hayes did not show an adverse employment action “because of” disability by the County.
Its reasoning turned on the employment relationship reflected in the record: Mr. Hayes was a Kwik Staff employee,
and the County ended the placement after concluding the County assignment required more hours than he could work.
The availability of an alternative assignment from the staffing company that could accommodate his hours restriction—an assignment he refused due to evening hours—
supported the court’s view that the record did not show disability-based discharge by the County.
In other words, the evidence fit a non-discriminatory explanation: mismatch between the assignment’s operational needs and the worker’s availability constraint.
4) Procedural posture reinforced the outcome
The panel’s waiver holding sharply limited the appellate issues, effectively locking in the staffing company’s dismissal absent a properly developed opening-brief challenge.
Additionally, by assuming disability and knowledge, the court neutralized Mr. Hayes’s procedural-evidence complaints: even if fully credited,
that evidence did not reach the dispositive elements where his proof failed.