                                                          FILED
                                               United States Court of Appeals
                                                       Tenth Circuit

                                                     August 16, 2012
                UNITED STATES COURT OF APPEALS
                                             Elisabeth A. Shumaker
                                                      Clerk of Court
                       FOR THE TENTH CIRCUIT


EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,

           Plaintiff-Appellant,

v.                                             No. 11-2096
                                   (D.C. No. 1:09-CV-00956-JEC-DJS)
TRICORE REFERENCE                               (D. N.M.)
LABORATORIES,

          Defendant-Appellee.
_________________________

EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,

           Plaintiff!Appellant,

v.                                             No. 11-2247
                                   (D.C. No. 1:09-CV-00956-JEC-DJS)
TRICORE REFERENCE                               (D. N.M.)
LABORATORIES,

         Defendant!Appellee,
!!!!!!!!!!!!!!!!!!!!!!

EQUAL EMPLOYMENT ADVISORY
COUNSEL; NFIB SMALL BUSINESS
LEGAL CENTER; CHAMBER OF
COMMERCE OF THE UNITED
STATES OF AMERICA,

           Amici Curiae.
                          ORDER AND JUDGMENT *


Before O’BRIEN and McKAY, Circuit Judges, and BRORBY, Senior Circuit
Judge.



      The Equal Employment Opportunity Commission (EEOC) brought this

action claiming TriCore Reference Laboratories (TriCore) violated the Americans

with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-12213, when it

terminated Rhonda Wagoner-Alison’s employment. 1 Substantiating the old saw

that no good deed goes unpunished, the EEOC persisted in litigating this case in

spite of clear evidence that TriCore went well beyond ADA requirements in

trying to oblige an employee. 2 Continuing its chosen course, it appeals from a




*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are
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not binding precedent, except under the doctrines of law of the case, res judicata,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.
1
       In its complaint, the EEOC also asserted TriCore violated the ADA by
failing to accommodate Wagoner-Alison’s disability. The EEOC no longer
asserts the claim.
2
      See footnote 7, infra.

                                        -2-
summary judgment entered in favor of TriCore and from the grant of attorney’s

fees to TriCore. We affirm. 3

                                 BACKGROUND

      Wagoner-Alison worked for TriCore as a Clinical Lab Assistant II

(CLA II). Her duties consisted of performing phlebotomy, registering patients,

and processing specimens. Standing and walking for one-third to two-thirds of a

work day, by her admission as well as by job description, were essential functions

of the CLA II job. In addition, the CLA II job required her to be able to climb,

balance, stoop, kneel, crouch, or crawl one-third of the day.

      In February 2006, Wagoner-Alison had surgery on her left foot and ankle

and took leave under the Family Medical Leave Act (FMLA) to recover. In

March she returned to work with her doctor’s approval, to a part-time, desk job

doing only the patient registration portion of the CLA II job. In June, she

resumed working full-time, performing all of the CLA II duties.

      On May 18, 2007, Wagoner-Alison had surgery on her right foot and ankle

and took leave under the FMLA to recover. Less than a month after surgery, she

provided TriCore with a doctor’s note indicating she could return to a

non-weight-bearing desk job. On August 8, however, her doctor, in responding to

a request for more information, said she was precluded from working for three



3
      Our jurisdiction derives from 28 U.S.C. § 1291.

                                        -3-
months after her surgery. By August 10 she had exhausted her FMLA

entitlement, but TriCore granted additional leave through August 20. Her doctor

said she could return to work on August 20, to a full-time, light-duty desk job

with walking or standing limited to one-to-two hours per day intermittently, but

with no climbing, balancing, stooping, kneeling, crawling, pushing, pulling, or

lifting. The doctor also directed her to keep her right foot elevated. Based on

these restrictions, she was unable to perform essential functions of the CLA II

job.

       On August 21, Wagoner-Alison returned to work as a CLA II on a reduced

schedule and was assigned to perform patient registration duties for a thirty-day

trial period. During those thirty days, her many errors threatened patient safety;

she was coached about the errors. On September 14, TriCore placed her on

unpaid leave for three weeks and encouraged her to apply for other internal

positions, but she did not do so. Instead, she applied for (and later received)

Social Security disability benefits based on her inability to stand or walk for any

length of time. TriCore terminated her employment on October 8.

       The EEOC filed suit asserting TriCore had discriminated against

Wagoner-Alison in violation of the ADA by failing to provide her with a

reasonable accommodation and by terminating her employment. TriCore moved

for summary judgment, arguing the ADA did not apply to Wagoner-Alison,

because she was not a qualified individual with a disability. Specifically TriCore

                                         -4-
argued she could not perform the essential functions of the CLA II job with or

without accommodation. The district court concluded Wagoner-Alison failed to

prove a prima facie case of discrimination. First, it determined she could not

perform the essential functions of the CLA II job, namely walking or standing for

up to two-thirds of an eight-hour work day, with or without accommodation.

Next, it determined there was no possible explanation how her representations to

the Social Security Administration--that she could not stand or walk for five-to-

ten minutes or take more than fifteen steps without an hour of rest--were

inconsistent with the walking and standing requirements of the CLA II job.

Finally, it determined the undisputed material facts showed TriCore did not

terminate Wagoner-Alison due to her disability; rather, it ended her patient-

registration duties because she made numerous errors. The court noted the record

evidence supporting its conclusion was disputed only by Wagoner-Alison’s self-

serving statements, which were insufficient to create a genuine dispute of material

fact. The EEOC appealed (No. 11-2096).

      In granting TriCore’s motion to recover attorney’s fees under 42 U.S.C.

§ 12205 the district court decided EEOC’s claims were frivolous, unreasonable,

and without foundation. 4 Since the EEOC admitted standing and walking were


4
       “In any action . . . the court . . . , in its discretion, may allow the prevailing
party . . . a reasonable attorney’s fee, including litigation expenses, and costs, and
the United States shall be liable for the foregoing the same as a private
individual.” 42 U.S.C. § 12205.

                                           -5-
essential functions, the court concluded it should have recognized as of April 8,

2010--the date it answered TriCore’s requests for admission--it could not prove a

prima facie case based on TriCore’s alleged refusal to accommodate Wagner-

Alison’s disability, which precluded her from walking and standing. Likewise,

the court decided, the EEOC should have been aware as of June 4, 2010—when

TriCore sent the EEOC a letter setting out deficiencies in the EEOC’s case—that

the disability claim lacked merit.

      After the district court made the above determinations, TriCore sought fees

in the amount of $140,571.62 for work performed after April 8, 2010. The EEOC

did not dispute the amount, but continued to assert its opposition to any fee

award. Determining the fee request was reasonable, the court granted the amount

of fees sought. The EEOC again appealed (No. 11-2247).

I. APPEAL NO. 11-2096--MERITS

      The EEOC argues only that TriCore’s reasons for terminating

Wagoner-Alison’s employment were a pretext for discrimination. But the district

court had no occasion to address pretext because it concluded Wagoner-Alison

failed to make a prima facie showing of discrimination. Consequently, we

construe the EEOC’s appeal to challenge, at most, the court’s prima facie case

holding.




                                         -6-
                            A. STANDARD OF REVIEW

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

applying the same standard used by the district court. Duvall v. Georgia-Pacific

Consumer Prods., L.P., 607 F.3d 1255, 1259 (10th Cir. 2010). Under these

standards, we will affirm 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).

We consider the evidence in the light most favorable to Wagoner-Alison. See

Duvall, 607 F.3d at 1259.

                                  B. DISCUSSION

       The ADA prohibits an employer from discriminating “against a qualified

individual on the basis of disability in regard to . . . discharge.” 42 U.S.C.

§ 12112(a); see Smith v. Midland Brake, Inc., 180 F.3d 1154, 1164 (10th Cir.

1999) (en banc). A “qualified individual” is “an individual [who], with or

without reasonable accommodation, can perform the essential functions of the

employment position that such individual holds or desires.” 42 U.S.C.

§ 12111(8); see also Duvall, 607 F.3d at 1262 (“To be covered under the statute,

the disabled employee must be capable of performing the essential core of the job

at issue.”).

       At the threshold, the EEOC must make a prima facie showing consisting of

three things: (1) Wagoner-Alison is disabled as defined by the ADA; (2) she is

qualified to perform the essential functions of the CLA II job or another job she

                                          -7-
desires with or without reasonable accommodation; and (3) TriCore “terminated

her employment under circumstances which give rise to an inference that the

termination was based on her disability.” Morgan v. Hilti, Inc., 108 F.3d 1319,

1323 (10th Cir. 1997). Each of these three must be shown; if one is not shown,

the others need not be addressed. Hennagir v. Utah Dep’t of Corr., 587 F.3d

1255, 1261-62 (10th Cir. 2009).

       Wagoner-Alison meets the first element. The second element

(qualification) is determined by two criteria: “First, . . . whether [she] can

perform the essential functions of the job. . . . Second, if (but only if) [we]

conclude[ she] is unable to perform the essential functions of the job, [we]

determine[] whether any reasonable accommodation by [TriCore] would enable

her to perform those functions.” Mason v. Avaya Commc’ns, Inc., 357 F.3d 1114,

1118 (10th Cir. 2004) (internal quotation marks omitted).

       Neither of these required showings has been met. The EEOC concedes

Wagoner-Alison cannot perform the required standing or walking--both essential

functions of a CLA II. Moreover, it does not challenge the district court’s

conclusion that it failed to present a prima facie case of failure to accommodate.

See Hennagir, 587 F.3d at 1265 n.3 (limiting review to accommodation proposed

by plaintiff). 5


5
       Indeed, the EEOC expressly states in its opening brief it no longer asserts a
failure-to-accommodate claim.

                                           -8-
      Despite Wagoner-Alison’s inability to perform the essential functions of a

CLA II job, TriCore continued her employment without reduction of pay or

benefits but required only that she perform the patient registration portion of the

job, an accommodation that was not required under the law. In essence, it created

a new job for her. Creating a new job by eliminating or modifying essential job

functions instead of accommodating the job’s essential functions is not required

under the ADA. See Duvall, 607 F.3d at 1262; Hennagir, 587 F.3d at 1264;

Mason, 357 F.3d at 1123; Smith v. Blue Cross Blue Shield of Kan., Inc., 102 F.3d

1075, 1076 (10th Cir. 1996). Although registering patients was a part of the CLA

II duties, it was only a part of the required duties; the ADA does not require

TriCore to permit an employee to perform only the sedentary functions of the

CLA II job. 6 Cf. Frazier v. Simmons, 254 F.3d 1247, 1260 (10th Cir. 2001)

(recognizing that paperwork was part of job duties, but job was not created to

provide administrative assistance). TriCore went beyond what was required by

the ADA by placing Wagoner-Alison in the registration-only desk job. 7 As a

6
      The Social Security disability determination specifically indicated she
could not perform sedentary work. See generally Cleveland v. Policy Mgmt. Sys.
Corp., 526 U.S. 795, 798, 805-06 (1999) (requiring, on summary judgment,
explanation for why social security disability claim of inability to work is
consistent with ADA claim that person can perform essential job functions with
reasonable accommodation).
7
      TriCore should not be punished for going beyond what it was required by
the ADA to do. See Terrell v. USAir, 132 F.3d 621, 626 n.6 (11th Cir. 1998)
(“An employer that bends over backwards to accommodate a disabled worker
must not be punished for its generosity by being deemed to have conceded the

                                         -9-
matter of law Wagoner-Alison is not a qualified individual with a disability under

the ADA because she cannot perform the essential functions of the CLA II job

with or without reasonable accommodation. 8

      Although our analysis could end here, we proceed to consider the

third requirement for a prima facie case--whether TriCore terminated

Wagoner-Alison’s employment under circumstances giving rise to an inference

her termination was based on her disability. We conclude the EEOC failed to

make the required showing. As the district court correctly concluded, the

termination of her employment came as a result of repeated errors threatening

patient safety. Other than her self-serving and unconvincing statements, nothing

in the appendices suggests her termination was for some other, unlawfully

discriminatory, reason.




reasonableness of so far-reaching an accommodation.” (further quotation
omitted)); Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1023 (7th Cir. 1997)
(“Employers should not be discouraged from doing more than the ADA requires
even if the extra effort that perhaps raises . . . expectations does not work out.”);
Vande Zande v. Wis. Dep’t of Admin., 44 F.3d 538, 545 (7th Cir. 1995) (“[I]f the
employer, because it is a government agency . . ., bends over backwards to
accommodate a disabled worker—goes further than the law requires . . . it must
not be punished for its generosity by being deemed to have conceded the
reasonableness of so far-reaching an accommodation.”).
8
       Under § 12111(8), a qualified individual is also an individual who can, with
or without accommodation, perform the essential functions of the job she desires.
The EEOC does not argue Wagoner-Alison desired a job other than the
registration job created by TriCore.

                                        -10-
      The EEOC failed to make a prima facie showing of discrimination under

the ADA. The court appropriately entered summary judgment against it.

II. APPEAL NO. 11-2247--ATTORNEY’S FEES

      According to the EEOC, the district court abused its discretion in awarding

attorney’s fees to TriCore because neither its termination claim nor its

accommodation claim were frivolous at any point in the proceedings. “[A]

district court may in its discretion award attorney’s fees to a prevailing

defendant . . . upon a finding that the plaintiff’s action was frivolous,

unreasonable, or without foundation, even though not brought in subjective bad

faith[,]” or “that the plaintiff continued to litigate after it clearly became so.”

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 422 (1978) (Title VII

case); see 42 U.S.C. § 12205 (ADA); Roe v. Cheyenne Mountain Conference

Resort, Inc., 124 F.3d 1221, 1232 (10th Cir. 1997) (holding claims for attorney’s

fees under ADA should be treated like claims for fees under Title VII or

42 U.S.C. § 1988). Only in the rare case will this difficult standard be met.

Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1203 (10th Cir. 2000). In

determining if a claim is frivolous, unreasonable, or without foundation, a district

court must not use post hoc reasoning to conclude that because the plaintiff did

not prevail fees are warranted. Christiansburg Garment Co., 434 U.S. at 421-22.

Dismissal of claims at the summary-judgment stage will not automatically meet

the standard for imposing fees against the plaintiff. Mitchell, 218 F.3d at 1203.

                                          -11-
      Our review is limited to whether the district court abused its discretion.

Under the abuse-of-discretion standard, we review to determine if the district

court “made a clear error of judgment or exceeded the bounds of permissible

choice in the circumstances.” Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1257

(10th Cir. 2005). Under the facts of this case, the district court did not abuse its

discretion.

      The EEOC continued to litigate the failure-to-accommodate and termination

claims after it became clear there were no grounds upon which to proceed. In so

concluding the court even identified precisely when the EEOC should have

stopped pursuing these claims; the accommodation claim clearly became

frivolous, unreasonable, and without foundation on April 8, 2010, when the EEOC

admitted standing and walking--which Wagoner-Alison could not do--were

essential functions of the CLA II position. Additionally, as the court found, the

termination claim became frivolous, unreasonable, and without foundation on

June 4, 2010, when (after some discovery) TriCore sent a letter to the EEOC

setting out the legal and factual insufficiency of the claim. TriCore stated

Wagoner-Alison could not perform the phlebotomy portion of the CLA II job and

there was no reasonable accommodation to be made that would allow her to

perform the phlebotomy duties. Furthermore, TriCore noted she made many

errors with patient registration that threatened patient safety, which resulted in

her termination. TriCore ended the letter by informing the EEOC it would file a

                                         -12-
motion for summary judgment and would ask for attorney’s fees if the EEOC did

not dismiss the lawsuit.

      The EEOC, however, chose to continue litigation. The summary judgment,

based on the EEOC’s failure to present even a prima facie case, did not conflict

with the Supreme Court’s admonishment against post hoc reasoning. The award

of attorney’s fees was a permissible choice and not a clear error of judgment; the

court offered sound reasons for awarding fees to TriCore. There was no abuse of

discretion. Cf. EEOC v. Agro Distribution, LLC, 555 F.3d 462, 472-73 (5th Cir.

2009) (concluding district court did not abuse its discretion in awarding fees

when EEOC proceeded with case after deposition testimony revealed there was no

claim).

III. ATTORNEY’S FEES FOR APPEAL NO. 11-2096

      By separate motion in appeal No. 11-2096, TriCore moves for damages and

costs pursuant to Fed. R. App. P. 38. 9 Under Rule 38, we may award damages

and costs if an appeal is frivolous. TriCore asserts the appeal is frivolous because

the EEOC does not even argue that the district court erred in determining the

EEOC failed to establish a prima facie case of ADA discrimination. It is correct

and we exercise our discretion to award damages and costs. See Roth v. Green,


9
      In its brief in appeal No. 11-2247, TriCore requests appellate attorney’s
fees. It did not, however, file a separate motion, as Rule 38 requires. Thus, the
request is DENIED.


                                        -13-
466 F.3d 1179, 1188 (10th Cir. 2006) (recognizing award under Rule 38 is matter

of discretion). The amount of such damages shall be determined by the district

court upon proper proofs.

IV. CONCLUSION

      The district court’s judgment on the merits is AFFIRMED. Its orders in the

attorney’s fees appeal are AFFIRMED. 10 TriCore’s Rule 38 motion in case

No. 11-2096 is GRANTED on the terms stated.


                                                    Entered for the Court



                                                    Terrence L. O’Brien
                                                    Circuit Judge




10
      Like the district court, in deciding these appeals, we did not rely on the
materials attached to TriCore’s summary judgment reply brief.

                                        -14-
