Upchurch v. Wastequip

Appellate Case: 21-7055 Document: 010110735614 Date Filed: 09/08/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT September 8, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
SHANE WEBSTER UPCHURCH,

Plaintiff - Appellant,

v. No. 21-7055
(D.C. No. 6:20-CV-00066-RAW)
WASTEQUIP, LLC; TRAVELERS (E.D. Okla.)
INDEMNITY AMERICA,

Defendants - Appellees.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before HARTZ, KELLY, and HOLMES, Circuit Judges.
_________________________________

Shane Webster Upchurch, pro se, appeals the district court’s order granting

Wastequip, LLC’s motion for summary judgment on his claims for discriminatory

discharge under the Americans with Disabilities Act (ADA) and the Age

Discrimination in Employment Act (ADEA), and retaliatory discharge under

Oklahoma’s workers’ compensation laws. He also appeals the denial of his motions

*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
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to amend the complaint to add new claims and a new party. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.1

I. BACKGROUND

The district court found the following facts undisputed for summary judgment

purposes. Wastequip hired Upchurch as a full-time welder on April 3, 2018. He was

thirty-nine years old at the time he was hired. Two weeks later, on April 17,

Upchurch sustained a work-related injury to his feet when a component he was

welding fell off a table and onto his feet. He was examined for his injuries at the

Family Health Clinic of Southern Oklahoma (FHCSO). Upchurch was next seen at

FHCSO on July 18, when he received an injection in his elbow for an unrelated

complaint.

In October 2018, Upchurch began experiencing numbness and tingling in both

hands. In November, he was tested for carpal tunnel syndrome.

On February 28, 2019, Wastequip placed Upchurch on leave under the Family

Medical Leave Act (FMLA) to have carpal tunnel surgery performed by his doctor at

the Texoma Valley Surgery Center.2 On March 7, his doctor performed a second

surgery to address Upchurch’s carpal tunnel syndrome. There are no work-injury

1
Travelers Indemnity America was named as a defendant but was never
properly served. Nonetheless, counsel entered an appearance on behalf of the
company as an appellee.
2
The FMLA guarantees the substantive rights of up to twelve weeks of unpaid
leave for eligible employees of covered employers for serious health conditions and
reinstatement to the former position or an equivalent one upon return from that leave.
See 29 U.S.C. §§ 2612(a)(1), 2614(a).
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reports concerning either the February or March surgeries. On April 17, Upchurch’s

doctor issued written confirmation that he could return to full-work duty, without

restrictions, starting May 1. He returned to work on that date.

Upchurch arrived at work on May 8, 2019, with a swollen hand and arm. He

stated that he did not know what was wrong nor could he recall doing anything that

would have caused an injury. He told the plant manager that his hand and arm were

fine when he left work the previous evening, May 7. The plant manager advised him

to visit his doctor. Upchurch went to Urgent Care Family Care of Calera (UCFCC)

for treatment. He returned to UCFCC for a follow-up appointment on May 15.

Upchurch’s last day of work was May 7.

On May 29, 2019, Upchurch filed a notice of claim for compensation with the

Oklahoma Workers’ Compensation Commission in which he alleged “[c]arpal

tunnel” injury to “both hands & arms” resulting from “[h]eavy repetitive mo[ti]on,

[l]ifting.” R. at 180.

Although Upchurch’s FMLA benefits expired on May 30, 2019, he failed to

inform Wastequip when he would return to work. By June 5, he had reached the

maximum number of allowable unexcused absences under the company’s attendance

policy. On or about June 9, Wastequip’s vice president of human resources called

Upchurch to find out when he planned to return to work or if he had any upcoming

doctor appointments. Upchurch failed to provide any updates. Wastequip terminated

his employment the following day in accordance with its attendance policy.

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II. DISTRICT COURT PROCEEDINGS

Upchurch filed suit in March 2020, alleging claims under the ADA, ADEA,

and retaliatory discharge under Oklahoma’s workers’ compensation laws. Nearly six

months after Wastequip filed its answer, Upchurch moved to amend his complaint to

add claims under the Equal Pay Act (EPA), 29 U.S.C. § 206(d)(1); the Genetic

Information Nondiscrimination Act (GINA), 42 U.S.C. § 2000ff-1(a)(1), (2); and the

Fourth Amendment, U.S. Const. amend IV. Wastequip objected and moved to strike

the motion. As grounds, it cited Upchurch’s failure to attach a proposed amended

complaint to the motion in violation of the local rules, the futility of the proposed

amendment, and undue delay.

While Upchurch’s motion to amend was pending, he filed a motion to “Add

Party to Action.” R. at 154. In this motion, he sought “to add party RAW to [this]

action, [to include] ALL defendants who have infiltrated [Upchurch’s] family,

home, body, life, doctor visits with the[ir] 5G mind-altering reading technology

hologram . . . to protect HUMAN SCUM Wastequip, Traveler’s Ind. America, [and

the] Worker’s Comp. Commission.” Id. “RAW” is an apparent reference to the

presiding judge. Wastequip opposed the motion. Again, Upchurch failed to attach a

proposed amended complaint.

Not long thereafter, Wastequip filed a motion for summary judgment. In

response, Upchurch filed a two-page “Motion to Deny Summary Judg[]ment,” in

which he laid out an unsubstantiated summary of his claims. Id. at 206-07. A month

later, he filed a document titled “Supplemental to Denial of Defendant’s Summary

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Judg[]ment Motion,” which was a hand-written timeline of events accompanied by a

number of unidentified and unauthenticated materials. Suppl. R. at 3. As grounds

for the untimely filing, Upchurch accused Wastequip of molestation, rape, torture,

and hate crimes, and further alleged that the company held him at gunpoint and then

stole his cell phone and prescription medications to hinder his ability to respond to

summary judgment. Wastequip moved to strike the supplement as untimely and

inappropriate. In response to the motion to strike, Upchurch accused Wastequip of

killing his dog and, employing obscene language, asked the court to “set a trial

date . . . ASAP[.]” Id. at 70. The court struck the response under Fed. R. Civ. P.

12(f), which provides that “[t]he court may strike from a pleading . . . any redundant,

immaterial, impertinent, or scandalous matter.” In a later order, it sua sponte struck

Upchurch’s Supplemental Denial on the grounds that it contained “abusive [and]

offensive language,” R. at 215, granted Wastequip’s motion for summary judgment,

and denied the motions to amend the complaint.

III. LEGAL FRAMEWORK

A. ADA

The ADA provides that “[n]o covered entity shall discriminate against a

qualified individual on the basis of disability in regard to . . . the . . . discharge of

employees.” 42 U.S.C. § 12112(a). “ADA discrimination claims are generally

subject to the [three-step] McDonnell Douglas burden-shifting framework adapted

from Title VII discrimination caselaw.” Kilcrease v. Domenico Transp. Co.,

828 F.3d 1214, 1220 (10th Cir. 2016).

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At step one, “a plaintiff carries the burden of raising a genuine issue of

material fact on each element of his prima facie case.” Id. (internal quotation marks

omitted). To establish a prima facie case,

a plaintiff must demonstrate: (1) that [he] is . . . disabled . . . within the
meaning of the ADA; (2) that [he] is . . . able to perform the essential
functions of the job, with or without reasonable accommodation; and
(3) that the employer terminated [his] employment under circumstances
which give rise to an inference that the termination was based on [his]
disability.
Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (citations omitted).

The ADA defines the term “disability” as “(A) a physical or mental impairment

that substantially limits one or more major life activities of such an individual;

(B) a record of such an impairment; or (C) being regarded as having such an

impairment.” 42 U.S.C. § 12102(1).

“If plaintiff establishes a prima facie case, the burden shifts to the defendant

[at step two] to offer a legitimate nondiscriminatory reason for its employment

decision.” Kilcrease, 828 F.3d at 1220 (internal quotation marks omitted). And at

step three, “[i]f defendant articulates a nondiscriminatory reason [for its actions], the

burden shifts back to plaintiff to show a genuine issue of material fact as to whether

the defendant’s reason for the adverse employment action is pretextual.” Id. (internal

quotation marks omitted).

B. ADEA

Under the ADEA, it is “unlawful for an employer . . . to fail or refuse to hire

or to discharge any individual or otherwise discriminate against any individual with

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respect to his compensation, terms, conditions, or privileges of employment, because

of such individual’s age.” 29 U.S.C. § 623(a)(1). “To establish a disparate-treatment

claim under the plain language of the ADEA . . . a plaintiff must prove that age was

the ‘but-for’ cause of the employer’s adverse decision.” Gross v. FBL Fin. Servs.,

Inc., 557 U.S. 167, 176 (2009). In the absence of direct evidence of age

discrimination, we apply the three-step burden-shifting analysis set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Jones v. Okla. City

Pub. Schs., 617 F.3d 1273, 1278 (10th Cir. 2010).

To prove a prima facie case at step one, a plaintiff must show: “1) []he is a

member of the class protected by the ADEA; 2) []he suffered an adverse employment

action; 3) []he was qualified for the position at issue; and 4) []he was treated less

favorably than others not in the protected class.” Id. at 1279 (brackets and internal

quotation marks omitted). If the plaintiff succeeds, “the burden of production then

shifts to the employer to identify a legitimate, nondiscriminatory reason for the

adverse employment action. Once the employer advances such a reason, the burden

shifts back to the plaintiff to prove the employer’s proffered reason was pretextual.”

Id. at 1278 (citation omitted).

C. Retaliation

Oklahoma law provides that “[a]n employer may not retaliate against an

employee when the employee has in good faith[] [f]iled a claim [under the Workers’

Compensation laws].” Okla. Stat. tit. 85A, § 7 (2019). The Workers’ Compensation

Commission has exclusive jurisdiction to hear and decide such claims. See Southon

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v. Okla. Tire Recyclers, LLC, 443 P.3d 566, 573 (Okla. 2019) (holding “[t]he

Legislature explicitly gave the Workers’ Compensation Commission sole jurisdiction

to oversee wrongful termination claims that arise from an underlying Workers’

Compensation Claim, . . . and . . . the . . . Commission is fit to adequately protect

Oklahoma public policy in this area”).

IV. STANDARD OF REVIEW

A. Summary Judgment

We review the district court’s grant of summary judgment de novo, “applying

the same legal standard as the district court.” Williams v. FedEx Corp. Servs.,

849 F.3d 889, 895 (10th Cir. 2017). Summary judgment is appropriate 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).

Although “[w]e view the evidence and draw reasonable inferences in the light

most favorable . . . to the nonmoving party,” Williams, 849 F.3d at 896, “[f]or

dispositive issues on which the plaintiff will bear the burden of proof at trial, he must

go beyond the pleadings and designate specific facts so as to make a showing

sufficient to establish the existence of an element essential to his case in order to

survive summary judgment,” Cardoso v. Calbone, 490 F.3d 1194, 1197 (10th Cir.

2007) (brackets and internal quotation marks omitted). “Unsubstantiated allegations

carry no probative weight in summary judgment proceedings.” Id. (internal quotation

marks omitted).

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If a party fails to properly support an assertion of fact or fails to properly
address another party’s assertion of fact as required by Rule 56(c), the court
may . . . grant summary judgment if the motion and supporting materials—
including the facts considered undisputed—show that the movant is entitled
to [summary judgment].
Fed. R. Civ. P. 56(e)(3). However, “[i]f a nonmovant shows by affidavit or

declaration that, for specified reasons, it cannot present facts essential to justify its

opposition, the court may: (1) defer considering the motion or deny it; (2) allow time

to obtain affidavits or declarations or to take discovery; or (3) issue any other

appropriate order.” Id. at 56(d).

B. Motions to Amend

A motion to amend a complaint is governed by Fed. R. Civ. P. 15(a), which

sets out the methods available for amending pleadings before trial. Because more

than twenty-one days had elapsed between the time Wastequip filed its answer and

Upchurch filed the motions to amend, he could add new claims or parties only by

leave of court or with Wastequip’s written consent. See id. at 15(a)(2). Relevant

here, Local Civil Rule 7.1(k) for the United States District Court for the Eastern

District of Oklahoma provides that “[a]ll motions to amend shall be accompanied by

a proposed order submitted pursuant to the ECF Policy Manual which specifically

sets forth what is being amended. The movant also shall attach to the motion a copy

of the signed, proposed amended pleading.”

“Where the party seeking amendment knows or should have known of the facts

upon which the proposed amendment is based but fails to include them in the original

complaint, the motion to amend is subject to denial.” Las Vegas Ice & Cold Storage

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Co. v. Far W. Bank, 893 F.2d 1182, 1185 (10th Cir. 1990) (internal quotation marks

omitted). Moreover, “[a] proposed amendment is futile if the complaint, as amended,

would be subject to dismissal.” Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir.

2004) (internal quotation marks omitted).

“We review for abuse of discretion the district court’s denial of [a] motion to

file an amended complaint.” Cohen v. Longshore, 621 F.3d 1311, 1313 (10th Cir.

2010). “Under the abuse of discretion standard, a trial court’s decision will not be

disturbed unless we have a definite and firm conviction that the lower court has made

a clear error of judgment or exceeded the bounds of permissible choice in the

circumstances.” Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1164 (10th Cir. 1998)

(brackets and internal quotation marks omitted).

Although we generally review for abuse of discretion a district court’s
denial of leave to amend a complaint, when this denial is based on a
determination that amendment would be futile, our review for abuse of
discretion includes de novo review of the legal basis for the finding of
futility.
Cohen, 621 F.3d at 1314 (internal quotation marks omitted).

V. DISCUSSION

A. Summary Judgment

The district court found that Wastequip was entitled to summary judgment.

As to the ADA claim, the court found that Upchurch “has not provided proof of any

impairment, whether occurring prior to or during his employment with Wastequip[,]

which meets the standard of substantially limiting a major life activity.” R. at 213.

Rather, “[t]he only restriction presented limiting [his] work were those related to his

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carpal tunnel surgeries[,] which were lifted as of May 1[], 2019 without restriction.”

Id. With regard to the ADEA claim, the court found that Upchurch failed to come

forward with any evidence that he was treated less favorably than others who were

not in the protected class or that age was a factor in Wastequip’s decision to

terminate his employment. The court further determined that the Workers’

Compensation Commission had exclusive jurisdiction to decide the retaliation claim.

Upchurch does not raise any substantive argument that the district court erred

by granting summary judgment based on the evidence it had before it. Instead, he

argues that “it was error [for the district court] to grant summary judgment to

[Wastequip] where [he,] the pro se plaintiff[,] was not given any opportunity to

engage in discovery.” Aplt. Opening Br. at 2. To be sure, Fed. R. Civ. P. 56(d)

provides that a nonmovant can ask the district court for the opportunity to conduct

discovery to adequately respond to summary judgment; however, Upchurch never

made any such request, and having failed to do so, the court did not abuse its

discretion in granting summary judgment. “[W]here a party opposing summary

judgment fails to take advantage of the shelter provided by Rule 56[(d)] . . . there is

no abuse of discretion in granting summary judgment if it is otherwise appropriate.”

Campfield v. State Farm Mut. Auto Ins. Co., 532 F.3d 1111, 1125, (10th Cir. 2008)

(ellipsis and internal quotation marks omitted). Summary judgment was appropriate

here.

Nor does Upchurch’s pro se status excuse his failure to ask for discovery.

“Although a pro se litigant’s pleadings are to be construed liberally and held to a less

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stringent standard than formal pleadings drafted by lawyers, this court has repeatedly

insisted that pro se parties follow the same rules of procedure that govern other

litigants.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.

2005) (brackets, citation, and internal quotation marks omitted). Here, Upchurch

never alerted the court to the need for any discovery.

We also reject Upchurch’s further argument that the “mass of documentation

[he tendered to the district court] in what he believed was the mandatory disclosure

requirements of [Fed. R. Civ. P. 26] . . . should have been considered in opposition to

summary judgment.” Aplt. Opening Br. at 10-11. Although he fails to specify the

nature of these documents, they appear to be a box of documents that he submitted in

conjunction with his “Motion for Violation of Conscience,” which the court found

were “incomprehensible with respect to any claim brought herein,” and ordered them

returned to Upchurch. R. at 4.

B. Motions to Amend

We find no abuse of discretion in the district court’s denial of Upchurch’s

motions to amend, which were facially deficient. First, Upchurch maintains that

“[t]he proposed amended complaint contains sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face.” Aplt. Opening Br. at 13

(brackets and internal quotation marks omitted). But the motions did not include

proposed amended complaints as required by the local rule, which makes it

impossible to evaluate the viability of the proposed amendments. Second, setting

aside Upchurch’s failure to comply with the local rule, he fails to explain how the

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proposed new claims were based on facts that were unavailable to him at the time he

filed the original complaint or how they set forth viable claims for relief under the

EPA, GINA, or Fourth Amendment. Last, he fails to explain how his proposed new

defendant was involved in the decision to terminate his employment. Although a

pro se plaintiff’s pleadings are entitled to some allowances, “the court cannot take on

the responsibility of serving as the litigant’s attorney in constructing arguments and

searching the record.” Garrett, 425 F.3d at 840.

VI. CONCLUSION

The judgment of the district court is affirmed.

Entered for the Court

Paul J. Kelly, Jr.
Circuit Judge

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