                                                                                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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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

                                             2
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



                                             3
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

                                             6
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.

                                               7
       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.
                                              9
                         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).
                                             10
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




                                             11
