Appellate Waiver and “Uncontroverted Facts” in Pro Se Summary Judgment: Procedural Defaults Control Title VII/ADA Retaliation Outcomes

Case: Mitchell-Pennington v. Installtec, Inc. (No. 25-3141)  |  Court: U.S. Court of Appeals for the Tenth Circuit  |  Date: August 11, 2026  |  Disposition: Affirmed (nonprecedential Order and Judgment)

1. Introduction

Lee Andrew Mitchell-Pennington (plaintiff-appellant), proceeding pro se, sued his former employer, Installtec, Inc. (defendant-appellee), asserting workplace discrimination and retaliation under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA). The case arose from a brief period of employment (January 18, 2022 to February 4, 2022) on a construction fireproofing project in Olathe, Kansas.

The litigation proceeded in two key phases: (i) partial dismissal at the pleading stage under Rule 12(b)(6) and (ii) summary judgment on the surviving retaliation claims. On appeal, the central issues were largely procedural: whether the district court needed to hold a hearing, how to treat the plaintiff’s affidavit, whether the plaintiff had adequate notice of Rule 56/local-rule obligations, and whether summary judgment was appropriate on the retaliation claims.

2. Summary of the Opinion

The Tenth Circuit affirmed the district court’s final judgment for Installtec on all claims. The court held:

• Waiver on appeal: Mitchell-Pennington waived any challenge to dismissal of the Title VII/ADA discrimination claims and the ADA failure-to-accommodate claim by failing to address them in his opening brief.
• No hearing required: The district court was not required to hold a summary judgment hearing; review of briefs and submitted materials sufficed.
• Affidavit insufficient: A “conclusory and self-serving” affidavit, without corroborating evidence, cannot defeat summary judgment.
• Facts deemed admitted: The district court properly relied on Installtec’s statement of facts as “uncontroverted and admitted” because Mitchell-Pennington failed to properly controvert them under Rule 56 and D. Kan. Rule 56.1 after receiving the pro se notice.
• No causation for retaliation: On the admitted facts, Installtec terminated him for legitimate performance/misconduct reasons, and Mitchell-Pennington produced no evidence of a causal connection to any protected activity—fatal to both Title VII and ADA retaliation claims.

3. Analysis

3.1 Precedents Cited

Pro se construction, but no advocacy

• Yang v. Archuleta, 525 F.3d 925 (10th Cir. 2008): The panel invoked Yang for the standard approach to pro se litigants: filings are construed liberally, but the court does not act as counsel.
  Influence here: This principle framed the opinion’s refusal to build arguments for Mitchell-Pennington—both in the district court’s handling of claims and the appellate court’s waiver analysis.

Appellate briefing requirements and waiver

• Bronson v. Swenson, 500 F.3d 1099 (10th Cir. 2007): Cited for the rule that inadequately raised arguments in an opening brief are not considered.
  Influence here: Bronson supplied the doctrinal basis for holding that the plaintiff waived challenges to the dismissed discrimination and accommodation claims by not briefing them.

No entitlement to an oral hearing on summary judgment

• Geear v. Boulder Cmty. Hosp., 844 F.2d 764 (10th Cir. 1988): The court relied on Geear to reject the argument that failure to hold a hearing implies failure to consider the motion.
  Influence here: This foreclosed a procedural attack on the summary judgment process and validated decision on the written record.

Affidavits at summary judgment: conclusory/self-serving statements

• Murray v. City of Sapulpa, 45 F.3d 1417 (10th Cir. 1995): Quoted for the proposition that “conclusory and self-serving affidavits are not sufficient” to survive summary judgment.
  Influence here: Murray was central to the court’s evidentiary assessment of the plaintiff’s affidavit.
• Ellis v. J.R.'s Country Stores, Inc., 779 F.3d 1184 (10th Cir. 2015): Used to emphasize reliability requirements and that unsubstantiated allegations carry no probative weight at summary judgment.
  Influence here: Ellis reinforced that a litigant must produce admissible, specific facts—not merely assertions—to create a genuine dispute.

Summary judgment review standards

• Byrnes v. St. Catherine Hosp., 158 F.4th 1107 (10th Cir. 2025): Cited for de novo review and the governing Rule 56 standard.
  Influence here: Byrnes anchored the appellate lens: the panel independently evaluated whether the admitted record permitted only one legal outcome.

Retaliation elements under Title VII and the ADA

• Vaughn v. Epworth Villa, 537 F.3d 1147 (10th Cir. 2008): Cited for the Title VII retaliation prima facie elements (protected activity, adverse action, causal connection).
  Influence here: Vaughn supplied the specific framework used to test the plaintiff’s evidence of causation.
• Foster v. Mountain Coal Co., LLC, 830 F.3d 1178 (10th Cir. 2016): Cited for the same elements in ADA retaliation.
  Influence here: Foster ensured the analysis of causation aligned across both statutes.

Failure of proof on a necessary element requires judgment as a matter of law

• Throupe v. Univ. of Denver, 988 F.3d 1243 (10th Cir. 2021): Cited for the principle that if a plaintiff lacks evidence on a necessary element, the movant is entitled to summary judgment.
  Influence here: Throupe supplied the “bottom-line” summary judgment consequence once causation evidence was absent.

3.2 Legal Reasoning

(A) Waiver as a merits gatekeeper

The court applied Fed. R. App. P. 28(a)(8)(A) and Bronson v. Swenson to limit review to arguments actually developed in the opening brief. This is not a mere technicality: it preserves the adversarial process by ensuring the appellee has a fair chance to respond and the court is not forced to speculate about potential theories.

Practically, this converted the appeal into a narrow review of the retaliation summary judgment ruling and related procedure, leaving intact the district court’s earlier dismissal of discrimination and accommodation theories.

(B) Summary judgment procedure: paper record suffices

Relying on Geear v. Boulder Cmty. Hosp., the panel held that a hearing is not required where the right to be heard is satisfied through briefs, affidavits, and record materials. The court treated the district court’s written order as confirmation the materials were reviewed, undermining the appellant’s “no hearing = no consideration” inference.

(C) Evidentiary sufficiency: affidavits must be more than assertions

The panel endorsed the district court’s view that the affidavit was “conclusory and self-serving,” citing Murray v. City of Sapulpa and Ellis v. J.R.'s Country Stores, Inc.. The key point is not that an affidavit is inadmissible because it favors the affiant, but that it must contain specific, reliable, nonconclusory facts that would allow a reasonable jury to find for the nonmovant. Unsupported allegations and speculation do not create a “genuine dispute.”

(D) Deeming facts admitted: Rule 56 and local-rule compliance after pro se notice

A pivotal procedural move was the district court’s decision to treat Installtec’s facts as “uncontroverted and admitted” because Mitchell-Pennington did not properly controvert them, instead submitting his own narrative. The Tenth Circuit upheld this approach after finding adequate notice was mailed and the notice itself explained compliance requirements, including D. Kan. R. 56.1.

This is outcome-determinative: once Installtec’s stated reasons for termination were taken as established (refusal to perform job duties, failure to follow instructions, recording others, aggression, lateness/absence), the plaintiff needed admissible evidence connecting termination to protected activity—yet he offered none that the court deemed competent and specific.

(E) Retaliation causation failure on an admitted record

Applying Vaughn v. Epworth Villa and Foster v. Mountain Coal Co., LLC, the panel focused on the third element—causal connection. The court did not need to resolve in detail what protected activity occurred because, on the admitted facts, the employer’s stated misconduct/performance reasons stood unrebutted and the plaintiff did not produce evidence linking termination to complaints of discrimination/harassment. Under Throupe v. Univ. of Denver, this evidentiary failure required judgment as a matter of law.

3.3 Impact

• Procedural compliance is dispositive in employment cases at summary judgment: The decision underscores that pro se status does not exempt a party from Rule 56 mechanics. Where local rules require specific paragraph-by-paragraph controversion with record citations, noncompliance can result in the opponent’s facts being deemed admitted—often ending the case.
• Affidavit-only cases face a steep hurdle: The opinion reinforces a common summary judgment reality in discrimination/retaliation suits: allegations must be anchored in specific admissible facts (documents, deposition testimony, contemporaneous communications, comparators, timing evidence tied to decisionmakers, etc.), not generalized conclusions.
• Appellate waiver doctrine remains strict: Even when the underlying claims include civil-rights statutes, the Tenth Circuit will not revive unbriefed issues. This incentivizes careful issue selection and complete argumentation in the opening brief.
• Nonprecedential but instructive: The court explicitly labeled the disposition nonbinding except for law-of-the-case/res judicata/collateral estoppel, but it is citable for persuasive value. Its practical guidance will likely be invoked by litigants and district courts on pro se notice, local-rule enforcement, and evidentiary sufficiency.

4. Complex Concepts Simplified

• “Summary judgment” (Rule 56): A pretrial judgment entered when there is no real dispute about important facts and the law requires one side to win. It is decided on evidence (affidavits, declarations, documents, depositions), not just allegations.
• “Uncontroverted facts deemed admitted”: Many courts require a specific response to each numbered fact offered by the movant, with citations to evidence. If the nonmovant does not properly dispute them, the court may treat them as true for purposes of the motion.
• “Protected activity” in retaliation law: Conduct like complaining about discrimination, reporting harassment, or participating in an investigation. The employee must show the employer acted against him because of that protected activity.
• “Causal connection”: Proof that the adverse action (here, termination) happened because of the protected activity. Timing alone may be insufficient without additional evidence, especially where the employer offers unrebutted legitimate reasons.
• “Waiver on appeal”: If a party does not develop an argument in the opening brief, the appellate court typically will not address it. The issue is treated as abandoned.
• “Conclusive/self-serving affidavit”: A sworn statement that asserts conclusions (“they discriminated against me”) without concrete supporting facts. Courts require detail and evidentiary support adequate for a jury to reasonably find in the affiant’s favor.

5. Conclusion

Mitchell-Pennington v. Installtec illustrates how procedural rigor and evidentiary standards dominate the summary judgment stage in Title VII and ADA retaliation litigation—especially for pro se parties. The Tenth Circuit affirmed because the appellant (1) waived several claims by not briefing them, (2) could not demand a hearing as a condition of consideration, (3) relied on an affidavit the court deemed conclusory and uncorroborated, and (4) failed to properly controvert the employer’s statement of facts despite receiving pro se notice, leaving an admitted record that negated retaliation causation. In the broader legal context, the decision reinforces that civil-rights claims must be prosecuted with both substantive proof and strict procedural compliance to reach a jury.