F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
March 30, 2006
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
ANTHONY HENDERSON,
Plaintiff-Appellant,
v. No. 05-1473
(D.C. No. 04-CV-219-EWN-BNB)
ECHOSTAR COMMUNICATIONS (D. Colo.)
CORPORATION; CYNTHIA
ROBBINS; THERESA HOWELL;
ELLEN BRUNSWICK; MEGAN
PRATER,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before TYMKOVICH, McKAY, and BALDOCK, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent, except under the doctrines of law of the case, res judicata,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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Plaintiff, Anthony Henderson, appearing pro se, appeals from the district
court’s order granting summary judgment in favor of defendants. Mr. Henderson
alleged that he was illegally discharged because of his disability in violation of
the Americans With Disabilities Act, 42 U.S.C. §§ 12101-12213 (“ADA”). 1 We
exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
I. Background Facts
Since the parties are familiar with the facts we discuss only briefly here the
facts relevant to Mr. Henderson’s appeal. Viewed in the light most favorable to
Mr. Henderson, the party opposing summary judgment, the record reveals the
following. Mr. Henderson was hit by a car when he was thirteen years old and
suffered a closed head injury. As a result, he continues to experience motor
problems, in particular a lack of coordination and tremor in his right hand. It
appears from the record that his head injury may also have resulted in certain
mental disabilities. However, Mr. Henderson admits that he only learned that he
may suffer from a mental disability after he stopped working for defendant
1
The district court also dismissed Mr. Henderson’s claim of illegal
retaliation in violation of the ADA and claims brought under the Family Medical
Leave Act. However, Mr. Henderson does not challenge that portion of the
district court’s decision. Since Mr. Henderson is proceeding pro se, we review
his appellate filings liberally. See Beedle v. Wilson, 422 F.3d 1059, 1063
(10th Cir. 2005). A liberal construction of his brief reveals challenges only to the
district court’s finding that he was not disabled and its refusal to consider
evidence submitted after the magistrate judge made his recommendation.
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EchoStar Communications Corporation (“EchoStar”) and that the only medical
problem he disclosed to EchoStar was the lack of coordination and tremor in his
right hand.
Mr. Henderson began working for EchoStar in January 2000 in its customer
service representative (“CSR”) department. He told the company about the
problem with his right hand during the interview process. However, he worked in
the CSR department without incident until November 2001 when he transferred to
customer service support (“CSS”). During Mr. Henderson’s tenure in the CSS
department, EchoStar became dissatisfied with his performance. The company
required its CSS employees to maintain a 90% rate of productivity, but
Mr. Henderson never met that standard. In June 2002, Mr. Henderson asked
EchoStar to lower the productivity rate applicable to him due to his “medical
condition.” Rec. Tab 34, Ex. C. He also provided a report of a neurological
exam that he had done in 1995. According to the report, Mr. Henderson’s
“neurological examination [was] normal except for the tremor involving primarily
the right hand.” Id. Tab 34, Ex. D at 3. The report concluded: “I do not think
[Mr. Henderson] should be trained or work in a job that requires fine coordination
of the right hand. Although the patient is able to type he is not able to write.” Id.
EchoStar rejected Mr. Henderson’s proposal to lower its productivity
standards. Instead, Mr. Henderson was put on a performance plan that required
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him to increase his productivity rate by 10% each week until he reached the
required rate of 90%. However, Mr. Henderson’s productivity rate never exceeded
43%. Moreover, his error rate consistently exceeded EchoStar’s limit. Mr.
Henderson admits that aside from asking EchoStar to lower his productivity rate,
he did not request any other accommodations due to his medical condition. He
also admits that he was perceived as having an attendance problem due to the time
off that he took in order to attend an insurance course.
On August 5, 2002, EchoStar informed Mr. Henderson that it was
terminating his employment. Mr. Henderson asked to be transferred back to the
CSR department, but EchoStar refused his request. Mr. Henderson subsequently
filed suit against EchoStar claiming that he was fired because he is disabled.
EchoStar maintains that Mr. Henderson was fired based on an extensive
documentation of poor performance.
II. Order Granting Summary Judgment
Upon recommendation of the magistrate judge, the district court dismissed
Mr. Henderson’s ADA claim. The court determined that Mr. Henderson failed to
provide evidence that, at the time of his employment with EchoStar, he was
disabled within the meaning of the ADA. The court also found that
Mr. Henderson produced no evidence that he was qualified for the job with or
without a reasonable accommodation or that he was discriminated against because
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of a disability. Relying on Butler v. City of Prairie Village, Kansas, 172 F.3d 736
(10th Cir. 1999), the court concluded that Mr. Henderson failed to establish a
prima facie case of discrimination under the ADA. The court also rejected
Mr. Henderson’s claim that his cognitive problems with reading, coordination,
memory, and analytical problem-solving rendered him disabled. The court found
that there was no evidence that he experienced those problems while working at
EchoStar or that EchoStar was ever made aware that he had any mental
disabilities.
Finally, the district court refused to consider additional medical evidence
that Mr. Henderson submitted with his objections to the magistrate judge’s
recommendation. The court reasoned that considering new evidence “would
frustrate the process of having a magistrate judge make a recommendation,
because a litigant who is displeased with the recommendation could always place
before the district judge material which was never before the magistrate judge.”
Rec. Tab 46 at 1.
On appeal, Mr. Henderson challenges the district court’s conclusion that he
was not disabled within the meaning of the ADA when he worked for EchoStar.
He also argues that the court should have considered medical evidence of his
disability regardless of when it was submitted.
III. Discussion
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“We review a district court’s grant of summary judgment de novo, using the
same standards applied by the district court.” Baca v. Sklar, 398 F.3d 1210, 1216
(10th Cir. 2005). Viewing the evidence and reasonable inferences drawn from the
evidence in the light most favorable to the nonmoving party, we will affirm a
grant of summary judgment only where “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).
After considering Mr. Henderson’s arguments and conducting a de novo
review of the record, we find no reversible error in the district court’s decision
that Mr. Henderson was not disabled as that term is defined in the ADA.
Although the record contains some evidence that Mr. Henderson may suffer from
certain cognitive deficiencies, it is undisputed that EchoStar was not made aware
of any such impairments until after Mr. Henderson was fired. On the other hand,
the record is replete with evidence of Mr. Henderson’s substandard performance
while he was working in EchoStar’s CSS department. Accordingly, we affirm the
dismissal of Mr. Henderson’s ADA claim for substantially the same reasons relied
on by the district court.
We also affirm the district court’s decision not to consider the additional
evidence that Mr. Henderson submitted with his objections to the magistrate
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judge’s recommendation. In reviewing a magistrate judge’s recommendation,
“[t]he district judge may . . . receive further evidence, or recommit the matter to
the magistrate judge with instructions.” Fed. R. Civ. P. 72(b) (emphasis added);
see also 28 U.S.C. § 636(b)(1). This language commits the decision of whether to
receive additional evidence to “the sound discretion of the district court.”
Doe v. Chao, 306 F.3d 170, 183 n.9 (4th Cir. 2002), aff’d, 540 U.S. 614 (2004);
see also Drew v. Dep’t of Corr., 297 F.3d 1278, 1289 n.4 (11th Cir. 2002)
(explaining that a district court has discretion to refuse supplemental evidence not
put before a magistrate judge). Under the abuse-of-discretion standard, “a trial
court’s decision will not be reversed unless the appellate court has a definite and
firm conviction that the lower court made a clear error of judgment or exceeded
the bounds of permissible choice in the circumstances.” Bryant v. Farmers Ins.
Exch., 432 F.3d 1114, 1122 (10th Cir. 2005) (quotation omitted).
The additional evidence that Mr. Henderson argues should have been
considered consists of medical records from the accident when he was thirteen,
other medical records detailing his treatment after a bicycle accident in 2002, and
a report of a neuropsychological evaluation completed in 2003. Having reviewed
the record and the parties’ arguments in light of the abuse-of-discretion standard,
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we cannot say that the district judge “made a clear error of judgment or exceeded
the bounds of permissible choice” in refusing to consider the additional evidence. 2
IV. The Individual Defendants
To avoid future confusion, we will address an issue not raised by either of
the parties — the dismissal of the individual defendants. The docket sheet reveals
that defendants Cynthia Robbins, Theresa Howell, Ellen Brunswick, and Megan
Prater were never served with process in this action. On August 18, 2005, the
magistrate judge issued an Order to Show Cause why the Complaint should not be
dismissed against the individual defendants for failure to prosecute. After
receiving Mr. Henderson’s response to that order, the magistrate judge
recommended that the individual defendants be dismissed without prejudice.
However, in an apparent oversight, the district court never acted upon that
recommendation. Instead, the court granted summary judgment to all the
defendants based on the motion that EchoStar filed solely on behalf of the
company and dismissed the entire case with prejudice.
It is not clear whether the district court’s dismissal of the individual
defendants was on the merits or based on Mr. Henderson’s failure to prosecute.
2
We also point out that even if the district court had accepted the additional
evidence, Mr. Henderson’s ADA claim would nonetheless have been dismissed,
as the court noted that “the new material would not change the result in this
case.” Rec. Tab 46 at 1.
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However, on appeal “[w]e are free to affirm a district court decision on any
grounds for which there is a record sufficient to permit conclusions of law, even
grounds not relied upon by the district court.” United States v. Sandoval, 29 F.3d
537, 542 n.6 (10th Cir. 1994) (quotation omitted). We conclude that the district
court’s reasons for granting summary judgment to EchoStar are equally applicable
to the individual defendants. Thus, we affirm on the merits the district court’s
dismissal with prejudice of defendants Robbins, Howell, Brunswick, and Prater.
The district court also denied Mr. Henderson’s motion to proceed in forma
pauperis (“IFP”) on appeal. Mr. Henderson has renewed his request to proceed
IFP in this court. Having reviewed the record and Mr. Henderson’s arguments, we
conclude that he has not raised “a reasoned, nonfrivolous argument on the law and
facts in support of the issues raised on appeal.” McIntosh v. U.S. Parole Comm’n,
115 F.3d 809, 812 (10th Cir.1997) (quotation omitted). We therefore deny his
request to proceed IFP.
The judgment of the district court is AFFIRMED and Mr. Henderson’s
motion to proceed IFP is DENIED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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