                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                     UNITED STATES COURT OF APPEALS August 14, 2008
                                                                 Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                    Clerk of Court




    THOMAS ROBERTS,

                Plaintiff-Appellant,

    v.                                                    No. 07-3133
                                                  (D.C. No. 05-CV-1325-MLB)
    CESSNA AIRCRAFT COMPANY,                                (D. Kan.)

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before McCONNELL, ANDERSON, and BRORBY, Circuit Judges.



         Plaintiff-appellant Thomas Roberts appeals from the district court’s grant

of summary judgment to his former employer, defendant-appellee Cessna Aircraft

Co., on his claims that Cessna violated the Americans with Disabilities Act

(ADA), 42 U.S.C. § 12101-12213. Mr. Roberts argued that he was disabled

because he has had 20/200 vision in his left eye since birth. He argued Cessna


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
violated the ADA by (1) placing him in a position as a sheet-metal assembler,

which it knew he could not perform due to his limited vision (placement claim),

(2) failing to accommodate his visual disability by denying his requests for a

transfer from the sheet-metal-assembler position to a stockroom position

(accommodation claim), and (3) refusing him transfer, disciplining, and

terminating him in retaliation for (a) a previous complaint to the Equal

Employment Opportunity Commission (EEOC) regarding a different alleged

disability, and (b) his accommodation requests. In granting summary judgment to

Cessna on Mr. Roberts’ placement and accommodation claims, the district court

held that Mr. Roberts had failed to make out a prima facie discrimination case as

to either claim. As to Mr. Roberts’ retaliation claim, the district court held that

while Mr. Roberts had established his prima facia case, he had failed to show that

Cessna’s assertions that (1) he was not recalled to the stockroom positions that

were open prior to his recall to the sheet-metal-assembler position due to his

lifting restrictions, and (2) the disciplinary actions and termination were based on

poor performance, were mere pretexts for discrimination.

      On appeal Mr. Roberts challenges each of these determinations and also

complains that the district court improperly relied on faulty affidavits provided by

Cessna. For the reasons set forth below we exercise our jurisdiction under

28 U.S.C. § 1291 and AFFIRM.




                                          -2-
                                 I. Motion to Dismiss

      We must first address Cessna’s motion to dismiss Mr. Roberts’ appeal.

Cessna seeks dismissal due to Mr. Roberts’ counsel’s persistent inability to meet

filing deadlines in both the district court and this court and the fact that

Mr. Roberts’ appellate brief exceeds the page limitation set forth in Federal Rule

of Appellate Procedure 32(a)(7). 1 Although we do not take lightly the failure of

Mr. Roberts’ attorney to comply with our procedural rules, and recognize the

burdens such failures often place on opposing parties, the best course of action in

this case is to deny appellee’s motion to dismiss and proceed to the rather

straight-forward merits decision.

                               II. Factual Background

      Mr. Roberts began working for Cessna in 1995. He worked as a

sheet-metal assembler for four months and then transferred to a position in one of

the stockrooms, a position he held until undergoing hernia surgery in 2002. Upon

return from surgery, Mr. Roberts was placed on light duty with a number of

temporary restrictions on his physical activity, including a limitation that he not

lift over ten pounds, and he was given a temporary position in the mail room.




1
       Although Mr. Roberts’ attorney has signed a certificate of compliance
certifying that the brief is less than thirty pages, the brief’s own page numbering
shows the substantive section of the brief is over thirty pages long and that the
certificate is found on the thirty-second page.

                                           -3-
      After his doctor released him to return to work–the release set no

limitations on his ability to work–Cessna sent him to an outside clinic to undergo

a Functional Capacity Evaluation (FCE). The report on the evaluation, which was

signed by an industrial rehabilitation specialist and a physical therapist,

concluded the most Mr. Roberts could lift from floor to waist was 40 pounds and

that he could lift no more than 25 pounds over his head. Aplt. App. at 305. It

further concluded he could exert no more than 39 pounds of pushing force and 38

pounds of pulling force. Id.

      Following the FCE, a physician employed by Cessna determined that

Mr. Roberts had obtained maximum medical improvement in recovering from his

hernia injury and that the limitations required by the FCE exceeded the listed

physical demands for his stockroom position, which required that he occasionally

lift up to 50 pounds. Mr. Roberts was put on medical leave and automatically

placed on the recall list for other stockroom and sheet-metal-assembler positions.

The record shows he was considered for and not placed in a number of other

stockroom positions–although none were in the department he previously worked

in. Cessna presented affidavits averring that he did not meet the physical

requirements for any of these positions and the record contains records of job

visits from Cessna doctors showing they reviewed the different positions and

determined that all of the jobs would require either a greater push/pull ability or a

greater lifting ability than Mr. Roberts possessed, and sometimes both.

                                          -4-
Mr. Roberts disagreed with the lifting restriction and filed an EEOC claim. 2

Mr. Roberts was eventually recalled to a different sheet-metal-assembler position.

He admits that he performed very poorly at this position due to his vision

disability and after various attempts to help him improve, and a number of

disciplinary reports due to his poor performance, he was terminated and

eventually sued Cessna. As noted above, the district court granted Cessna

summary judgment on all Mr. Roberts’ claims and he now appeals.

                                   III. Analysis

A. Affidavits

      We turn first to Mr. Roberts’ assertion that the district court improperly

considered affidavits presented with Cessna’s summary judgment motion. The

whole of Mr. Roberts’ argument is: “Cessna used affidavits which were not based

upon personal knowledge. The affidavits as Roberts pointed out in his

supplemental brief were defective and should not be used.” Aplt. Br. at 9. In

support of this conclusory point, Mr. Roberts cites to the referenced supplemental

brief opposing summary judgment which, in turn, merely alleged that “all” of


2
      Mr. Roberts asserted that Cessna was improperly treating him as disabled
by taking his job away and refusing to give him a new one. Aplt. App. at 285-86.
Cessna responded that it did not consider the physical restrictions from the hernia
operation to be disabling and that Mr. Roberts was simply placed on leave due to
permanent job restrictions that could not be accommodated. Id. at 279-81.
Although the record does not contain the EEOC’s final ruling, it appears the
Kansas Human Rights Commission found no probable cause. See Aplt. App. at
342.

                                         -5-
Cessna’s affidavits violated Federal Rule of Civil Procedure 56 because they

failed to state they were based upon personal knowledge. Aplt. App. at 148. But

the personal knowledge of the affiant required by Rule 56(e) may be inferred

from the context of the affidavit. Barthelemy v. Air Lines Pilots Ass’n, 897 F.2d

999, 1018 (9th Cir. 1990). Thus, the failure of an affidavit to state that the

statements therein were based on personal knowledge does not prevent that

affidavit from being properly considered.

B. Placement claim

      Mr. Roberts asserts that the district court erred in granting Cessna summary

judgment on his placement claim.

             We review the district court’s decision [granting summary
      judgment] de novo, applying the same legal standards applicable in
      the district court, including a view of the evidence in the light most
      favorable to [Mr. Roberts] and drawing all inferences in [his] favor.
      Summary judgment is appropriate only if the pleadings, the discovery
      and disclosure materials on file, and any affidavits show that there is
      no genuine issue as to any material fact and that the movant is
      entitled to judgment as a matter of law.

Trujillo v. PacifiCorp, 524 F.3d 1149, 1154 (10th Cir. 2008) (citation and

quotation omitted).

      Mr. Roberts argues that a reasonable jury could have determined that

Cessna violated the ADA by recalling him to the sheet-metal-assembler position

because it recalled him to that position to have an excuse to terminate him and it




                                          -6-
knew that his vision disability would prevent him from properly performing that

job.

       No covered entity 3 shall discriminate against a qualified individual
       with a disability because of the disability of such individual in regard
       to job application procedures, the hiring, advancement, or discharge
       of employees, employee compensation, job training, and other terms,
       conditions, and privileges of employment.

42 U.S.C. § 12112(a).

       To establish a prima facie case of discrimination under the ADA, a
       plaintiff must show (1) that he is disabled within the meaning of the
       ADA; (2) that he is qualified, with or without reasonable
       accommodation, to perform the essential functions of the job held or
       desired; and (3) that he was discriminated against because of his
       disability.

Davidson v. America Online, Inc., 337 F.3d 1179, 1188 (10th Cir. 2003)

(quotation omitted). Mr. Roberts’ claim was apparently that Cessna moved him

into that position in order to terminate him because it knew he could not perform

the essential functions of that job with his partial blindness. Assuming without

deciding that in some circumstances hiring a disabled person into a position that

he or she cannot perform in order to later terminate them can be considered a

discriminatory act, we agree with the district court that in this case Mr. Roberts

failed to present sufficient evidence on this argument to survive summary

judgment.

3
     Under 42 U.S.C. § 12111(2), “[t]he term ‘covered entity’ means an
employer, employment agency, labor organization, or joint labor-management
committee.” Cessna qualifies as an “employer” under § 12111(5)(A).


                                         -7-
      Cessna presented affidavits from the individual employees involved in the

placement of Mr. Roberts in the sheet-metal-assembler position averring they

were not personally aware, and therefore did not consider, Mr. Roberts’ vision

impairment at the time of placement. Mr. Roberts presented evidence that there

were references to his impairment in the company medical records, but he

presented no evidence that, even if those employees were generally aware of his

impairment, they were aware that it would prevent him from performing the

sheet-metal-assembler job he was recalled to. Mr. Roberts was recalled to that

position because he had previously and successfully–from a vision

standpoint–worked as a sheet-metal assembler. While Mr. Roberts presented

evidence that the second position turned out to be much more difficult than the

first, he himself expressed no concern at the time of recall that his vision would

prevent him from properly doing the job and he testified that when he was

recalled he thought that he would be able to do the job. He presented no evidence

that the employees responsible for the recall had any knowledge of (1) the

difference in difficulties between the two positions, or (2) that any such

difference would be so great as to prevent him from successfully completing his

work. Thus, Mr. Roberts presented no evidence to suggest that Cessna had any

discriminatory intent in placing him in that position.




                                         -8-
C. Accommodation Claim

       Mr. Roberts’ also asserts that a factual question existed as to whether

Cessna would have violated the collective bargaining agreement (CBA) between

Cessna and Mr. Roberts’ union if it had accommodated his vision disability by

transferring him from the sheet-metal-assembler position to a stockroom

position. 4

       Under the ADA, an employer discriminates against a qualified individual

with a disability if the employer does not

       mak[e] reasonable accommodations to the known physical or mental
       limitations of an otherwise qualified individual with a disability who
       is an applicant or employee, unless such [employer] can demonstrate
       that the accommodation would impose an undue hardship on the
       operation of the business of such [employer].

42 U.S.C. § 12112(b)(5)(A). Further, an employer must, when reasonable,

accommodate a disabled employee by reassignment to a vacant position if the

employee cannot be accommodated in his current job. Smith v. Midland Brake,

Inc., 180 F.3d 1154, 1167 (10th Cir. 1999) (en banc). To present his prima facie

failure to accommodate claim under the ADA, Mr. Roberts had to show (1) that

he is disabled within meaning of ADA, (2) that he could perform, either with or

without reasonable accommodation, the essential functions of the stockroom jobs,

and (3) that Cessna did not take reasonable steps to reassign him to those vacant


4
      The record includes excerpts from an agreement between Cessna and the
International Association of Machinists.

                                         -9-
positions. See Bartee v. Michelin N. Am., Inc., 374 F.3d 906, 912 n.4 (10th Cir.

2004).

         But “an existing position would not truly be vacant, even though it is not

presently filled by an existing employee, if under a collective bargaining

agreement other employees have a vested priority right to such vacant positions.”

Midland Brake, 180 F.3d at 1175. Here, the district court found that “[t]he CBA

does not allow transfer into a position unless the recall lists for those positions

have been fully exhausted. At the time of plaintiff’s requests, the recall lists had

not been exhausted.” Aplt. App. at 273.

         Mr. Roberts does not contest that the recall lists were not exhausted, but he

asserts that under section 11.08 of the CBA the union and Cessna could have

agreed to modify the CBA. He argues that “[i]t is undisputed that Roberts’ union

requested a transfer,” Aplt. Opening Br. at 11, and asserts this was tantamount to

a request by the union–and refused by Cessna–that the CBA be modified to allow

such a transfer. This argument misrepresents both the content of the CBA and the

union’s actions.

         Section 11.07 of the CBA states that an employee is not eligible for transfer

until he or she has completed six months at his or her current position. Aplt.

App. at 316. But § 11.08 provides that a transfer request from an employee with

less than six months employment in their current position would be considered

upon mutual agreement between Cessna and the union. Nevertheless, we do not

                                           -10-
read § 11.08 to alter the CBA’s requirement that the recall lists be fully

exhausted. Even if it did, however, there was no evidence presented that the

union wanted to modify the CBA to allow Mr. Roberts to be transferred prior to

exhaustion of those lists. In his response to Cessna’s summary judgment motion

Mr. Roberts cited to a Cessna business record to support his claim that the union

wanted him to be transferred. That record shows only that at one point

Mr. Roberts and “his Union Steward” met with a Cessna human resources

employee. Aplt. App. at 329. The record does not provide any information

regarding the steward’s role in the meeting other than stating that the steward said

he could “‘testify’” to the fact that Mr. Roberts was “‘atrocious at doing sheet

metal.’” Id. This is a long way from showing that the union sought to modify the

CBA to allow Mr. Roberts to transfer into a stockroom position and is not enough

to create a genuine issue of material fact for trial.

D. Retaliation Claim

      Mr. Roberts argues that the district court erred in granting summary

judgment on his claim that Cessna violated the ADA by refusing him transfer,

disciplining, and terminating him in retaliation for (a) a previous complaint to the

EEOC regarding a different alleged disability, and (b) his accommodation request.

Cessna claims its refusal to recall him into the open stockroom positions prior to

his recall to the sheet-metal-assembler position was due to the fact that the




                                          -11-
stockroom positions in question exceeded the lifting restrictions he was subject to

and that the disciplinary actions and termination were performance-based.

      “In order to establish a prima facie case of retaliation, [Mr. Roberts] must

show: (1) that he engaged in protected opposition to discrimination, (2) that a

reasonable employee would have found the challenged action materially adverse,

and (3) that a causal connection existed between the protected activity and the

materially adverse action.” Proctor v. U.P.S., 502 F.3d 1200, 1208 (10th Cir.

2007) (quotation omitted). Filing an EEOC complaint and requesting

accommodation are both protected activities. Id. (EEOC complaint); Jones v.

U.P.S., Inc., 502 F.3d 1176, 1194 (10th Cir. 2007).

      The district court found that while Mr. Roberts established his

prima facie case, he had failed to show that Cessna’s assertions that (1) he was

not recalled to the stockroom positions that were open prior to his recall to the

sheet-metal-assembler position due to his lifting restrictions, and (2) the

disciplinary actions and termination were based on poor performance, were mere

pretexts for discrimination. We agree.

      “Pretext can be shown by such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered

legitimate reasons for its action that a reasonable factfinder could rationally find

them unworthy of credence and hence infer that the employer did not act for the

asserted non-discriminatory reasons.” Trujillo, 524 F.3d at 1158. Regarding

                                         -12-
Cessna’s failure to recall him to the open stockroom positions, Mr. Roberts’ main

arguments as to pretext in his response to Cessna’s summary judgment motion

were that Cessna’s lifting requirements for those positions were “bogus” and that

the recall denials were close in time to the EEOC complaint. For the reasons set

forth by the district court, see Aplt. App. at 277-78, we agree that those

arguments are insufficient to show pretext. Mr. Roberts raised other minor

arguments in the district court and on appeal in an effort to show pretext. Many

of these are based on misrepresentations of the record; and some of the arguments

raised on appeal were not raised to the district court. But none of the arguments

is sufficient to show district court error, because none of the evidence referenced

is sufficient to allow a reasonable factfinder to rationally find Cessna’s proffered

nondiscriminatory reasons for the questioned adverse employment actions

unworthy of credence. 5

5
       Mr. Roberts spends a good portion of his appellate argument asserting that
Cessna violated the ADA by removing him from his previous stockroom position
because of “bogus” lifting restrictions imposed as the result of a functional
capacity examination he underwent following hernia surgery. He also
complains that Cessna violated the ADA by refusing to place him in other
stockroom positions due to those restrictions prior to his placement in the
sheet-metal-assembler position. These were not issues that were before the
district court or were addressed by the district court in its decision.

      The pretrial order that was approved by counsel for both parties and
entered by the court on September 27, 2006, framed the claims at issue. See
Fed. R. Civ. P. 16(c)(2)(A), (d). “[C]laims, issues, defenses, or theories of
damages not included in the pretrial order are waived even if they appeared in the
complaint.” Wilson v. Muckala, 303 F.3d 1207, 1215 (10th Cir. 2002).
                                                                       (continued...)

                                         -13-
                                  IV. Conclusion

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court



                                                    Wade Brorby
                                                    Circuit Judge




5
 (...continued)
The pretrial order in this case set forth the claims at issue, i.e., that Cessna
violated the ADA by (1) placing him in a position as a sheet-metal assembler,
which it knew he could not perform due to his limited vision, (2) failing to
accommodate his visual disability by transferring him from his sheet-
metal-assembler position to a stockroom position, and (3) disciplining and
terminating him in retaliation for a previous complaint to the EEOC. See R., Doc.
45 at 3-4, 8-9.

       Mr. Roberts also makes various arguments that seem to claim that he both
was and was not disabled by his hernia and by carpal tunnel syndrome despite the
fact that the record appears clear that his claimed disability was, as found by the
district court, that he was partially blind. These arguments have not been
considered.

                                        -14-
