FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 15, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
AUDRIAN TASTAN,
Plaintiff - Appellant,
v. No. 19-2095
(D.C. No. 1:17-CV-00664-JCH-SCY)
LOS ALAMOS NATIONAL SECURITY, (D. N.M.)
LLC,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, McHUGH, and MORITZ, Circuit Judges.
_________________________________
Audrian Tastan sued her former employer, Los Alamos National Security,
LLC (“LANS”), for disability discrimination and retaliation in violation of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213. We affirm the
district court’s grant of summary judgment in favor of LANS, as well as its award of
discovery sanctions and costs.
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
I. Background
LANS manages and operates Los Alamos National Laboratory under a contract
with the National Nuclear Security Administration of the United States Department of
Energy. From 2003 to 2017, LANS employed Tastan as an administrative specialist—a
position that required her to maintain a “Q”-level national security clearance to access
classified information. Employees in her group are held to the highest standards of
honesty and truthfulness because of the nature of their work and their access to classified
information.
In February 2017, Tastan resigned from LANS in lieu of termination after an
internal investigation revealed she improperly used her security clearance to attempt to
access information about her brother, a former contract worker for LANS. Specifically,
without disclosing her relationship to her brother, she asked two employees why her
brother’s security clearance was terminated. Tastan pointed out the absence of a policy
prohibiting her inquiry, but LANS considered her conduct to be dishonest and deceptive.
Although LANS pointed to this incident to justify its decision, Tastan attributes her
termination to her epilepsy, which caused her to experience seizures at work in 2008,
2014, 2015, and 2016. After receiving a right-to-sue letter from the Equal Employment
Opportunity Commission, she sued LANS for disability discrimination and retaliation in
violation of the ADA.
To support her discrimination claim, Tastan alleged that LANS subjected her to
disparate treatment and failed to make a reasonable accommodation for her epilepsy
when she requested a reassignment and a reduced workload. Tastan requested several
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reassignments and schedule changes during the later years of her employment, with
varying results. In 2014, she twice requested reassignments to a different unit with a less
intense workload, citing personality conflicts with her manager and coworkers; LANS
denied those requests. In 2015, she requested a schedule change so she could take her
child to school; LANS granted the request, but Tastan reverted back to her original
schedule soon thereafter because she sensed tension and animosity with her managers. In
2016, she again requested a reassignment to a different unit, citing poor management
personalities and a stressful work environment; LANS granted the request, but Tastan
had another personality conflict with her manager.
To support her retaliation claim, Tastan alleged that her supervisors at LANS
harassed her after she requested the changes, gave her a negative performance review,
denied her reassignment requests, and ultimately terminated her because of her disability.
LANS filed a motion for partial judgment on the pleadings under Federal Rule of
Civil Procedure 12(c), asking the district court to dismiss the allegations of a hostile work
environment and elevated seizure activity due to that environment because (1) Tastan
failed to exhaust her administrative remedies for that claim and (2) the exclusivity
provision of the New Mexico Worker’s Compensation Act bars that claim. While that
motion was pending, LANS moved for summary judgment on the discrimination and
retaliation claims under Federal Rule of Civil Procedure 56. In addition, the magistrate
judge imposed $10,710.67 in discovery sanctions and awarded $1,771.77 in
discovery-related costs after finding that inaccuracies in Tastan’s expert disclosures led
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LANS to incur unnecessary expert fees, attorneys’ fees, and court-reporter fees. The
district court granted the Rule 56 motion and denied the Rule 12(c) motion as moot.
Tastan now appeals the district court’s summary judgment decision and its
imposition of sanctions and costs.1
II. Summary Judgment
We review the district court’s grant of summary judgment de novo, applying the
same legal standard as the district court. Cillo v. City of Greenwood Vill., 739 F.3d 451,
461 (10th Cir. 2013). Summary judgment must be granted if “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “The movant bears the initial burden of making a prima facie
demonstration of the absence of a genuine issue of material fact and entitlement to
judgment as a matter of law.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71
(10th Cir. 1998). If the movant will not bear the burden of persuasion at trial, it can meet
this initial burden “simply by pointing out to the court a lack of evidence for the
nonmovant on an essential element of the nonmovant’s claim.” Id. at 671. It “need not
negate the nonmovant’s claim.” Id. We view the evidence in the light most favorable
to the nonmovant. Aguilar v. Mgmt. & Training Corp., 948 F.3d 1270, 1276 (10th
Cir. 2020).
1
Tastan had counsel before the district court, but she now proceeds pro se. We
construe her pro se filings liberally but do not serve as her advocate. See Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
4
A. Discrimination
Tastan’s discrimination claim is based on circumstantial evidence, so the district
court properly applied the burden-shifting framework from McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-04 (1973). The employee must first establish a prima facie
case of discrimination, id. at 802, by showing “(1) [s]he is disabled (or perceived as
disabled) as defined by the ADA, (2) [s]he is qualified to perform the essential functions
of [her] job with or without reasonable accommodation, and (3) [s]he suffered
discrimination as a result of [her] disability,” Koessel v. Sublette Cty. Sheriff’s Dep’t,
717 F.3d 736, 742 (10th Cir. 2013). If she does so, the burden shifts to the employer to
articulate a legitimate, nondiscriminatory reason for its adverse action. McDonnell
Douglas, 411 U.S. at 802. An employer’s burden to show its reason was legitimate is
“exceedingly light.” Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1149
(10th Cir. 2011) (internal quotation marks omitted).
If the employer makes this showing, the burden shifts back to the employee to
show the employer’s justification was pretextual. McDonnell Douglas, 411 U.S.
at 804-05 & n.18. To carry this burden, an employee must show the proffered reasons
for termination “were so incoherent, weak, inconsistent, or contradictory that a rational
factfinder could conclude the reasons were unworthy of belief.” Young v. Dillon Cos.,
468 F.3d 1243, 1250 (10th Cir. 2006) (internal quotation marks omitted). For instance,
“[a] plaintiff may show pretext by demonstrating the proffered reason is factually false,
or that discrimination was a primary factor in the employer’s decision.” DePaula v.
5
Easter Seals El Mirador, 859 F.3d 957, 970 (10th Cir. 2017) (internal quotation marks
omitted).
The district court assumed, without deciding, that Tastan established a prima facie
case of disparate treatment discrimination. It then held that the record establishes a
legitimate, nondiscriminatory reason for LANS’s decision to terminate her
employment—namely, deceptive and dishonest workplace misconduct in using her
position to inquire about her brother’s security clearance. It cited the investigation by
LANS’s human resources department and the resulting recommendation that LANS
should terminate Tastan based on five aggravating factors: (1) her position; (2) her
security-clearance level; (3) the finding of dishonest and deceptive behavior; (4) the
nature of the information that Tastan accessed as part of her position; and (5) a write-up
for dishonest behavior in 2008. It also cited a consistent declaration from Tastan’s
supervisor. The district court found his evidence satisfied LANS’s “exceedingly light”
burden to show its reasons were legitimate—shifting the burden back to Tastan.
Tastan argued that these reasons were pretextual because (1) LANS does not have
a written policy that prohibits asking about another person’s security clearance;
(2) LANS did not uniformly discipline employees for misconduct involving honesty and
truthfulness, as evidenced by its treatment of eleven other employees; and (3) the timing
of the termination suggests it was based on her disability. The district court rejected
these arguments. It noted the lack of evidence regarding LANS’s treatment of other
employees, LANS’s awareness of Tastan’s seizures, and LANS’s policy on retention of
employee reprimands. It deemed LANS’s investigation to be fair because LANS
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interviewed five key witnesses, including Tastan herself. It also emphasized that an
employee’s subjective evaluation of the situation is not relevant to pretext, because courts
must examine the facts as they appear to the decisionmaker and defer to an employer’s
business judgment. The relevant inquiry “isn’t to ask whether the employer’s decision
was wise, fair or correct, but whether it honestly believed the legitimate,
nondiscriminatory reasons it gave for its conduct and acted in good faith on those
beliefs.” DeWitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1307 (10th Cir. 2017) (alterations
and internal quotation marks omitted). After finding that Tastan did not show pretext, the
district court granted summary judgment to LANS.
Several of Tastan’s appellate arguments reflect a misunderstanding of the district
court’s application of McDonnell Douglas or its procedural rules. For example, she
argues that epilepsy is a disability covered by the ADA and represents that she would
have had a doctor testify to that effect at trial. But the district court assumed she had a
covered disability as part of its assumption that she could establish a prima facie case of
discrimination, so a finding to this effect would not change the outcome of this case. She
also discusses the evidence and witnesses she intended to present at trial to address the
lack of evidence noted by the district court. But we must conduct our review of the
summary judgment grant from the district court’s perspective at the time it ruled,
“limiting our review to the materials adequately brought to the attention of the district
court by the parties.” Adler, 144 F.3d at 671. “[W]here the burden to present . . . specific
facts by reference to exhibits and the existing record was not adequately met below, we
will not reverse a district court for failing to uncover them itself.” Id. at 672.
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Tastan’s remaining arguments simply repeat arguments that the district court
considered and rejected—that LANS was aware of her epilepsy, that LANS did not
uniformly discipline employees for misconduct involving honesty and truthfulness, that
the timing of the seizures and her termination supports a finding of pretext, and that
LANS should not have considered her 2008 reprimand per company policy. Further, she
fails to provide appropriate citations to the record or to legal authorities as Federal Rule
of Appellate Procedure 28(a)(8)(A) requires. Despite the liberal construction we afford
to plaintiff, we will not comb the record or construct arguments or theories for her.
See Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991).
Having thoroughly reviewed the parties’ briefs, the record, and the applicable law,
we affirm for substantially the same reasons articulated in the district court’s thorough
and well-reasoned decision granting summary judgment to LANS.
B. Retaliation
The elements of a retaliation claim are: (1) the employee “engaged in protected
opposition to discrimination”; (2) the employee suffered an adverse action during or after
his opposition, which a reasonable employee would have found to be materially adverse
(meaning that “it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination”); and (3) there was “a causal connection . . .
between the protected activity and the materially adverse action.” Proctor v. United
Parcel Serv., 502 F.3d 1200, 1208 & n.4 (10th Cir. 2007) (internal quotation marks
omitted). The McDonnell Douglas burden-shifting framework also applies to retaliation
claims. Fassbender v. Correct Care Sols., LLC, 890 F.3d 875, 890 (10th Cir. 2018).
8
Tastan alleged that she requested a reassignment and a reduced work load to
accommodate her disability, which is a protected activity under the ADA, and that she
was harassed and ultimately terminated because of her requests. But the district court
granted summary judgment to LANS on two grounds. First, it found that Tastan did not
link her reassignment requests to her epilepsy; rather, she cited factors such as a stressful
and hostile working environment, personality problems, and poor management
personalities.2 Because the reassignment requests did not constitute a request for
accommodation, and because she did not establish the requisite causal connection
between those requests and any adverse action, Tastan did not establish a prima facie
case of retaliation. Second, even if Tastan could establish a prima facie case of
retaliation, the evidence she proffered to show pretext mirrored the inadequate evidence
for her failed discrimination claim, so it was insufficient to raise a genuine issue of
material fact.
Here too, we affirm for substantially the same reasons articulated in the district
court’s well-reasoned decision. Tastan’s brief summarizes why she thinks she was
harassed and treated unfairly. But again, she has not provided appropriate citations to the
record or to legal authorities per Federal Rule of Appellate Procedure 28(a)(8)(A), and
she appears to be citing new evidence that is not in the record.
2
Similarly, Tastan concedes on appeal that her request for a “temporary deviated
work schedule . . . was not due to [her] epilepsy.” Aplt. Opening Br. at 7.
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III. Discovery Sanctions and Costs
Finally, Tastan asks us to reverse the district court’s award of discovery sanctions
and discovery-related costs to LANS. Both awards are outside the scope of our review.
LANS advises in its response brief that Tastan’s counsel has already paid the full
amount of the discovery sanctions because the magistrate judge held that Tastan and her
counsel were jointly and severally liable for them. In any event, we cannot review the
sanctions award because Tastan did not object to the underlying magistrate judge’s order
dated January 31, 2019. “This court has adopted a firm waiver rule under which a party
who fails to make a timely objection to the magistrate judge’s findings and
recommendations waives appellate review of both factual and legal questions.”
Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005). When a party had
counsel before the district court, like Tastan did,3 the firm waiver rule applies unless “the
interests of justice require review.” See id. (internal quotation marks omitted). This
exception is “a narrow one.” Key Energy Res., Inc. v. Merrill (In re Key Energy Res.,
Inc.), 230 F.3d 1197, 1200 (10th Cir. 2000); see, e.g., Vega v. Suthers, 195 F.3d 573, 580
(10th Cir. 1999) (noting that “we have excused the failure to file timely objections only in
the rare circumstance in which a represented party did not receive a copy of the
3
“[W]e expect counsel to know the pleading rules of the road without being
given personal notice of them by the district court.” Nasious v. Two Unknown
B.I.C.E. Agents, 492 F.3d 1158, 1163 n.5 (10th Cir. 2007). The rule governing
magistrate judges’ recommendations on nondispositive matters provides: “A party
may serve and file objections to the order within 14 days after being served with a
copy. A party may not assign as error a defect in the order not timely objected to.”
Fed. R. Civ. P. 72(a) (emphasis added).
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magistrate’s R&R”). Tastan states that she cannot afford to pay the award and to support
her family. Though we sympathize with her situation, this statement alone does not
satisfy the interests-of-justice exception. The magistrate judge held a hearing regarding
sanctions and issued a detailed order carefully explaining why the sanctions award was
appropriate.
Likewise, we cannot review the costs award because Tastan did not object to the
district court clerk’s August 7, 2019 order setting costs. That order instructed the parties
to file any motion for review within seven days, consistent with Federal Rule of Civil
Procedure 54(d)(1). “[A] party’s failure to file a motion for review of costs with the
district court within the [applicable] period constitutes a waiver of the right to challenge
the award.” Bloomer v. United Parcel Serv., Inc., 337 F.3d 1220, 1221 (10th Cir. 2003)
(per curiam) (construing a previous version of Rule 54(d)(1) with a five-day review
period).
IV. Conclusion
We affirm the district court’s judgment. We grant Tastan’s motion for leave to
proceed in forma pauperis. Only prepayment of fees is excused, not the fees
themselves. See 28 U.S.C. § 1915(a).
Entered for the Court
Nancy L. Moritz
Circuit Judge
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