                                                                         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not binding precedent, except under the doctrines of law of the case, res judicata,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.

                                         -2-
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


                                          -3-
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


                                          -6-
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,




                                          -7-
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.

                                         -8-
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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