F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 4 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
ALLAN T. CUMMINGS, an
individual,
Plaintiff - Appellant,
v. No. 03-4280
GALE NORTON, Secretary of the
Department of Interior,
Defendant - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D. Ct. No. 2:99-CV-321-PGC)
Erik Strindberg (Erika Birch with him on the briefs), Strindberg & Scholnick,
LLC, Salt Lake City, Utah, appearing for Plaintiff-Appellant.
Carlie Christensen, Assistant United States Attorney (Paul M. Warner, United
States Attorney, with her on the brief), Office of the United States Attorney, Salt
Lake City, Utah, appearing for Defendant-Appellee.
Before TACHA, Chief Circuit Judge, HENRY, Circuit Judge, and WHITE, *
District Judge.
*
Honorable Ronald A. White, District Judge, United States District Court
for the Eastern District of Oklahoma, sitting by designation.
TACHA, Chief Circuit Judge.
The National Park Service (“Park Service”) terminated Plaintiff-Appellant
Allan T. Cummings’s employment as a park ranger for making a series of
misrepresentations on his employment applications. Mr. Cummings brought
numerous discrimination claims in the District Court, including a failure to
accommodate claim and a wrongful termination claim under the Rehabilitation
Act of 1973. The District Court dismissed all claims on summary judgment. Mr.
Cummings appeals only the wrongful termination claim, relying primarily on our
opinion in Den Hartog v. Wasatch Academy, 129 F.3d 1076 (10th Cir. 1997), to
argue the District Court erred. In the District Court, however, Mr. Cummings
only presented his “Den Hartog argument” in regard to his failure to
accommodate claim—not the wrongful termination claim. Because Mr.
Cummings’s Den Hartog argument as it relates to his wrongful termination claim
is advanced for the first time on appeal, we decline to consider it. Therefore, we
take jurisdiction under 28 U.S.C. § 1291 and AFFIRM.
I. BACKGROUND
Beginning in 1983, Mr. Cummings served as a seasonal park ranger for
numerous summers, working as a level-two law enforcement ranger at
Canyonlands National Park. Apparently, the hiring process for these seasonal
positions is informal. The Park Service’s staff would hire Mr. Cummings for a
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seasonal position and then Mr. Cummings would, pro forma, fill out an
employment application.
In 1988, Mr. Cummings applied for a position as a permanent law
enforcement ranger at Canyonlands National Park. Chief Ranger Margaret
Johnston did not hire Mr. Cummings because she believed he was an alcoholic.
Mr. Cummings filed a grievance with the Equal Employment Opportunity
Commission, arguing that he was discriminated against on the basis of a
perceived disability. In 1993, an administrative law judge found in Mr.
Cummings’s favor.
The Park Service and Mr. Cummings then entered into a settlement
agreement. The agreement included the following terms: (1) the Park Service
would pay Mr. Cummings $10,000; (2) the Park Service would hire him as a
permanent ranger at Arches National Park; (3) if Mr. Cummings had a favorable
background check, the Park Service would enroll him in a law enforcement course
at the Federal Law Enforcement Training Center in order to secure a permanent
law enforcement position; and (4) if he could not pass the background check, he
would be placed in an equivalent non-law enforcement position.
In October 1993, the Office of Personnel Management began its
background check of Mr. Cummings for his enrollment at the Training Center. In
January 1994, while the investigation was still in progress, Mr. Cummings began
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working as a law enforcement ranger at Arches National Park. That February,
Mr. Cummings failed the background check because the Office of Personnel
Management found that he had made several misrepresentations on his
employment applications with the Park Service. Because of the unfavorable
background check, Mr. Cummings was reassigned to a ranger position without
law enforcement duties.
The Park Service then conducted its own review of Mr. Cummings. Since
1983, Mr. Cummings had filled out fourteen employment applications with the
Park Service. The investigation revealed that these applications were replete with
misrepresentations and inconsistencies. For example, Mr. Cummings falsely
claimed at various times that he had earned a college degree and received a Purple
Heart. He further denied being convicted by either a court martial or civilian
court. Based upon these misrepresentations, Arches National Park
Superintendent, Noel Poe, moved to terminate Mr. Cummings’s employment for
falsifying government documents. In September of 1995, Superintendent Poe sent
Mr. Cummings a “Proposed Removal Letter,” which outlined the grounds for his
dismissal.
In October 1995, Mr. Cummings responded to Deputy Field Director Robert
W. Reynolds. In his letter, he noted that his employment as a ranger constituted
part of a settlement agreement with the Park Service and that he suffered from
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post-traumatic stress disorder (“PTSD”) due to his military service in Vietnam.
He also submitted a letter from therapist LeJean Sommerville. This letter stated
that Mr. Cummings’s PTSD caused memory lapses and blackouts that could affect
his ability to fill out the applications correctly. Mr. Cummings was fired in
March 1996.
In August 1999, Mr. Cummings commenced this suit. He brought six
distinct causes of action in his amended complaint, including failure to
accommodate and wrongful termination claims under the Rehabilitation Act of
1973. See 29 U.S.C. § 794. All of his claims were dismissed on summary
judgment. Mr. Cummings timely appeals, raising only his wrongful termination
claim.
II. STANDARD OF REVIEW
We review the District Court’s grant of summary judgment de novo and
apply the same standards used by the District Court. See Byers v. City of
Albuquerque, 150 F.3d 1271, 1274 (10th Cir. 1998). Summary judgment is
appropriate “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). We view the evidence, and
draw reasonable inferences therefrom, in the light most favorable to Mr.
5
Cummings. Byers, 150 F.3d at 1274.
III. DISCUSSION
Mr. Cummings lacked direct evidence of discrimination. The District Court
therefore analyzed his discrimination claims within the burden-shifting framework
created by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). 1
Under McDonnell Douglas, a plaintiff must first make a prima facie case of
discrimination, after which the burden shifts to the defendant to articulate a
nondiscriminatory reason for its conduct. Id. at 802–03. The plaintiff then must
show that the defendant’s stated reason is merely pretextual. Id. at 804. To make
a prima facie case for wrongful termination under the Rehabilitation Act, a
plaintiff must establish three elements: (1) he was a disabled person under the
statute, (2) he was otherwise qualified for the job regardless of the disability, and
(3) he was terminated from his employment because of the disability. Roberts v.
Progressive Independence, Inc., 183 F.3d 1215, 1221 (10th Cir. 1999). The
parties agree that Mr. Cummings meets the first two elements. The issue is
1
Mr. Cummings asserts, apparently for the first time on appeal, that the
McDonnell Douglas burden-shifting framework does not apply in this case. This
Court, however, has clearly held that the McDonnell Douglas burden-shifting
applies to Rehabilitation Act claims. See Williams v. Widnall, 79 F.3d 1003, 1005
n.3 (10th Cir. 1996). The concurring opinion in Wells v. Colorado Department of
Transportation, 325 F.3d 1205, 1221 (10th Cir. 2003) (Hartz, J., concurring),
relied on by Mr. Cummings, does not alter our duty to apply binding Tenth Circuit
precedent.
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whether the Park Service fired Mr. Cummings because of his PTSD.
In his brief opposing the Park Service’s summary judgment motion, Mr.
Cummings argued that he satisfied his initial burden on this element, although the
evidence he raised in support of that argument is unclear. In response, the Park
Service argued that it had a legitimate nondiscriminatory reason for firing Mr.
Cummings: It fired him because he made misrepresentations on his employment
applications, not because of his PTSD. The Park Service further argued that it did
not learn of Mr. Cummings’s PTSD until after it issued its Proposed Removal
Letter; hence, Mr. Cummings could not have been fired because of his PTSD
because the disability was unknown to the Park Service when it decided to fire
him.
With the burden shifted back to Mr. Cummings, he replied that the Park
Service’s proposed legitimate non-discriminatory reasons were pretextual. He
argued that the firing came too quickly after the settlement agreement, he had
always been a good employee, and inaccurate employment forms do not provide
sufficient grounds for termination. The District Court rejected these arguments,
holding that they did not establish a genuine issue of material fact that the Park
Service discriminated against him because of his disability.
On appeal, Mr. Cummings again argues that the Park Service’s proffered
grounds for termination were a mere pretext for discrimination. He does not,
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however, make the same arguments on appeal that he made below. Instead, he
now attempts to establish pretext by relying exclusively on Den Hartog v.
Wasatch Academy, 129 F.3d 1076 (10th Cir. 1997). In Den Hartog, we held that
the Americans With Disabilities Act of 1991 (“ADA”) prohibits employers from
drawing a distinction between a disability and disability-caused conduct—except
for drug and alcohol abuse—and then rely upon the disability-caused conduct as
legitimate grounds for terminating employment. 2 129 F.3d at 1086. Following
Den Hartog, Mr. Cummings argues that he made misrepresentations on
employment applications because of his disorder, and therefore the Park Service
improperly relied on PTSD-caused conduct to fire him. As such, Mr. Cummings
asserts that the Park Service’s proffered reason for firing him was merely
pretextual.
The Park Service contends that this Den Hartog argument is raised for the
first time on appeal; therefore, we should not entertain it. See Singleton v. Wulff,
428 U.S. 106, 120 (1976). The Park Service admits that Mr. Cummings made his
Den Hartog argument in regard to his failure to accommodate claim. It argues,
2
While Den Hartog concerned the ADA rather than the Rehabilitation Act,
we note that the two Acts “impose identical obligations on employers.” Cisneros
v. Wilson, 226 F.3d 1113, 1124 (10th Cir. 2000). “Because the language of
disability used in the ADA mirrors that in the Rehabilitation Act, we look to cases
construing the Rehabilitation Act for guidance when faced with an ADA
challenge,” Kimber v. Thiokol Corp., 196 F.3d 1092, 1102 (10th Cir. 1999), and
vice versa.
8
however, that raising an argument with respect to the failure to accommodate
claim is insufficient to preserve the argument for appeal on the wrongful
termination claim. We agree.
Mr. Cummings is attempting to appeal one cause of action using an
argument advanced below for a different cause of action. Advancing an argument
for one cause of action, however, does not constitute raising it for all causes of
action. This conclusion follows logically from the general rule that issues not
raised below are waived on appeal. In Tele-Communications, Inc. v.
Commissioner, 104 F.3d 1229 (10th Cir.1997), in discussing why an appellate
court seldom considers an issue not presented to the district court—especially
when the appeal is of a summary judgment—we explained:
This rule is particularly apt when dealing with an appeal from a grant
of summary judgment, because the material facts are not in dispute
and the trial judge considers only opposing legal theories . . . . In
order to preserve the integrity of the appellate structure, we should
not be considered a ‘second-shot’ forum, a forum where secondary,
back-up theories may be mounted for the first time . . . . Thus, an
issue must be presented to, considered [and] decided by the trial
court before it can be raised on appeal.
Id. at 1232-33 (quotations and internal citations omitted).
Because of the importance of raising an issue below, we have “consistently
turned down the argument that the raising of a related theory was sufficient” to
preserve an issue for appeal. Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 722
(10th Cir.1993). Similar concerns arise in the present situation, and therefore we
9
hold that raising an argument with respect to one claim does not preserve that
argument for appeal of a different claim.
This conclusion is consistent with other circuits’ treatment of the issue.
For example, in Shabazz v. Aruz, 336 F.3d 154 (2d Cir. 2003), a habeas petitioner
appealed several claims based on Brady v. Maryland, 373 U.S. 83, 87 (1963),
which mandates disclosure of favorable and material evidence to a defendant
upon request. In support of one of his Brady claims, the petitioner argued that the
District Attorney’s Office failed to disclose certain comments made by the trial
court—which is prohibited under Gordon v. United States, 344 U.S. 414 (1953).
Shabazz, 336 F.3d at 159–60. The Second Circuit refused to address petitioner’s
Brady argument in the context of Gordon because he had only raised the Gordon
issue below in a different context:
While petitioner cited Gordon in his objections to [the lower court’s]
report and recommendation, he did so in the context of arguing that
“the prosecution cannot avoid its duty to disclose by keeping its
promises to a witness general,” citing DuBoise v. Lefevre, which he
claimed was “a logical application of existing Supreme Court
precedent announced in Gordon v. United States.” Id. at 160
(internal citations omitted).
That reference, according to the Second Circuit, was not a sufficient assertion of
a Brady claim based upon the District Attorney’s Office’s failure to disclose
comments made by the trial court. Id. As such, it found that the issue was raised
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for the first time on appeal and declined to consider it. 3 Id.
Here, in his brief opposing summary judgment, Mr. Cummings presented
his Den Hartog argument when making his prima facie case for the failure to
accommodate claim. He contended that the Park Service should have
accommodated his disorder because his PTSD could not be separated from his
PTSD-caused conduct. Similarly, Mr. Cummings relied on Den Hartog at the
summary judgment hearing in regard to his failure to accommodate claim.
Our review of the record, however, reveals that Mr. Cummings never
argued below that his termination was improperly based on PTSD-caused conduct.
This conclusion is further supported by the fact that the District Court did not
analyze the applicability of Den Hartog to the wrongful termination claim. We
conclude, therefore, that Den Hartog was only considered in connection to Mr.
Cummings’s failure to accommodate claim, which is not raised on appeal.
Finally, Mr. Cummings’s counsel stated during the summary judgment
3
This approach is not unique to the Second Circuit. See, e.g., Johns
Hopkins Univ. v. CellPro, Inc., 152 F.3d 1342, 1361–62 (Fed. Cir. 1998)
(declining to address appellant’s “written description argument” on appeal, even
though it was asserted in the district court in the context of its 204-patent claim,
because “[t]his is not the . . . written description argument that CellPro currently
asserts on appeal.”); United States v. Hartzog, 983 F.2d 604, 608 (4th Cir. 1993)
(declining to hear petitioner’s ex post facto argument because “[w]hile Hartzog
did note at that hearing that the offenses charged under the different counts
occurred while different versions of the Guidelines were in effect, he did so only
in the context of arguing that the enhancement for a managerial role should not
apply to all counts”) (citations omitted).
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hearing that although “we listed both . . . a failure to accommodate and terminate
. . . . I don’t know if there’s really a difference, they are one in the same.” This
lone statement, however, does not sufficiently raise the Den Hartog argument in
the wrongful termination context. The complaint and all the briefing in this case
treat the two claims as distinct with Den Hartog only being addressed in relation
to the failure to accommodate claim. Moreover, the record clearly establishes that
the District Court and counsel for the Park Service took the Den Hartog argument
as applying only to the failure to accommodate claim. This single statement
simply is not sufficient reference to the Den Hartog argument in the wrongful
termination context.
The applicability of Den Hartog to Mr. Cummings’ wrongful termination
claim under the Rehabilitation Act was never presented to the District Court. The
District Court had no opportunity to rule on Mr. Cummings’s Den Hartog
argument in connection with his wrongful termination claim, nor did the Park
Service have the chance to present evidence or argument in opposition to the
application of Den Hartog to the wrongful termination claim. Mr. Cummings’s
contention that Den Hartog helps to raise a genuine issue of material fact on this
claim, therefore, cannot be raised in this appeal.
IV. CONCLUSION
Because Mr. Cummings raises his Den Hartog argument in conjunction
12
with his wrongful termination claim for the first time on appeal, we decline to
consider the issue and AFFIRM.
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