                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                           March 10, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
ISAAC M. HENSON,

      Plaintiff - Appellant,

v.                                                          No. 16-7057
                                                  (D.C. No. 6:15-CV-00163-RAW)
AMERIGAS PROPANE, INC.,                                     (E.D. Okla.)

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, MATHESON, and McHUGH, Circuit Judges.
                  _________________________________

      Isaac M. Henson sued his former employer, Amerigas Propane, Inc., for

discrimination in violation of the Americans with Disabilities Act (ADA), 42 U.S.C.

§§ 12101-12213, and wrongful discharge in violation of the Oklahoma Workers’

Compensation Act (OWCA), Okla. Stat. tit. 85, § 341 (2011), repealed by 2013 Okla.

Sess. Laws 208, § 171 (current version at Okla. Stat. tit. 85A, § 7). The district court

granted summary judgment in favor of Amerigas. Because we agree that Henson



      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor 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
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 This order and judgment is not binding precedent,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.
failed to show Amerigas’s explanation for firing him was a pretext for unlawful

discrimination and retaliation, we affirm.

                                   I.     Background

       Henson began working as a delivery driver for Amerigas in May 2011. His

responsibilities included filling and delivering propane tanks to commercial and

residential customers. While executing those tasks in August 2012, he injured the middle

finger of his right hand. Amerigas tried to accommodate him by assigning light work

duties as needed. Even so, Henson had over sixty medical and occupational-therapy

appointments after his injury and underwent hand surgery in April 2013. That

September, he advised Amerigas that his doctors recommended a second hand surgery,

which was likely to lead to additional work-related restrictions.

       Meanwhile, Henson’s work performance deteriorated. His initial performance

appraisal was generally positive, with Amerigas commending him for his work ethic and

for being a team player and even giving him a two-percent merit pay increase. But

repeated safety violations soon marred his overall work record. Henson’s delivery truck

was equipped with a “DriveCam” system that captures twelve seconds of audio and video

when triggered by certain safety-related events. DriveCam recorded three incidents of

cornering too fast (in September 2011, December 2011, and November 2012) and one

incident of running a stop sign (in October 2012). Ultimately, Henson received a formal

written warning for these safety violations in an employee disciplinary report dated

November 2012. Safety was not the only concern. In April 2013, Henson received a

second formal written warning and a four-day suspension for insubordination, a negative

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attitude, and customer service deficiencies. His May 2013 performance appraisal

reiterated Amerigas’s concerns about his driving safety and advised him to “work to

direct his anger away from fellow employees and be more positive toward the company.”

Aplt. App., vol. I at 204-05.

       The decline of the parties’ relationship culminated in Henson’s termination in

October 2013. To justify its decision, Amerigas cited another safety violation: leaving

the gauge open on a customer’s propane tank. It also cited “[i]nsubordination and

[a]ttitude,” id. at 224, and detailed seven problematic encounters with customers and

coworkers between August and October 2013. However, Henson was certain he was

fired because of his injury and resulting disability, the imminence of his second hand

surgery, and his filing of a workers’ compensation claim.

       Unhappy with his termination, Henson filed a complaint with the Equal

Employment Opportunity Commission and the Oklahoma Employment Security

Commission. After exhausting his administrative remedies and securing a right-to-sue

letter, he filed this lawsuit asserting: (1) Amerigas violated the ADA when it fired him

because of his hand impairment; and (2) Amerigas violated the OWCA when it fired

him in retaliation for engaging in statutorily protected activity. Amerigas moved for

summary judgment. The district court applied the burden-shifting framework from

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), to both claims.1 It


       1
        It is undisputed that this framework applies to Henson’s claims under both
the ADA and the OWCA. See Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.
1997) (ADA claims); Adair v. City of Muskogee, 823 F.3d 1297, 1314 (10th Cir. 2016)
(OWCA retaliatory-discharge claims).
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found that Henson established a prima facie claim of discrimination under both the ADA

and the OWCA. But it also found that Amerigas established a legitimate,

nondiscriminatory reason for terminating Henson, so the burden shifted to Henson to

present evidence from which a reasonable fact finder could conclude the proffered reason

was a pretext. Even viewing the record in the light most favorable to Henson, the court

held that he did not establish a genuine issue of material fact on pretext to support either

claim. Henson filed this timely appeal.

                                     II.    Discussion

       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). But 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.

       The sole issue on appeal is whether Henson presented sufficient evidence to show

pretext. To carry his burden for the ADA claim, Henson must show that the proffered

reasons for his termination “were so incoherent, weak, inconsistent, or contradictory that

                                              4
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).

Similarly, for the OWCA claim, he must show that the proffered explanation is

“unworthy of credence.” Adair v. City of Muskogee, 823 F.3d 1297, 1314 (10th Cir.

2016) (internal quotation marks omitted).

       Henson makes the same pretext arguments for both claims. First, he points out the

temporal proximity of the confirmation of his need for a second surgery in September

2013 and his termination in October 2013. Second, he attacks the veracity of the

individual infractions identified in the employee disciplinary reports and characterizes

some of the safety violations as “trivial.” Aplt. Br. at 40. He addresses those infractions

one by one, recounting his version of the events and explaining why his behavior was not

problematic or may have been misinterpreted. Finally, and more generally, he cites

Amerigas’s failure to adequately investigate the open-valve complaint, its shifting

reasons for terminating him, and its vacillation as to which supervisor actually decided to

fire him as additional proof of pretext.

       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 order dated June 7, 2016.

       We add that any suspiciousness in the timing of Amerigas’s termination decision

is eclipsed by Henson’s checkered performance history, which dates back to his first

DashCam incident in September 2011 and his first written warning in November 2012.

Moreover, Amerigas was aware of the hand injury and its impact on Henson’s ability to

                                              5
perform his duties long before the purported triggering event—i.e., the need for a second

surgery. Henson notified his supervisor shortly after he was hurt, he attended over sixty

appointments in his quest to treat his injury, and he was placed on light duty after he

underwent the first surgery.

       We also note that Henson’s self-assessment of his performance is not enough to

show pretext. On appeal, Henson systematically disputes each of the negative incidents

on his employee disciplinary reports. But “[i]t is the manager’s perception of the

employee’s performance that is relevant, not plaintiff’s subjective evaluation of his own

relative performance.” Furr v. Seagate Tech., Inc., 82 F.3d 980, 988 (10th Cir. 1996);

see, e.g., Lobato v. N.M. Env’t Dep’t, 733 F.3d 1283, 1292-93 (10th Cir. 2013)

(upholding no-pretext finding where employer believed other employees’ accounts of the

plaintiff’s behavior); Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1179

(10th Cir. 2006) (finding that employee’s subjective beliefs regarding her attitude,

knowledge, and performance did not raise a genuine issue of material fact regarding

employer’s stated bases for her termination). “[O]ur role 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). Henson’s conclusory statements are

not enough to call the latter into question.




                                               6
                                 III.   Conclusion

       Because Henson did not present sufficient evidence to show pretext, summary

judgment was appropriate on his ADA and OWCA claims. We affirm the judgment

of the district court.


                                          Entered for the Court


                                          Paul J. Kelly, Jr.
                                          Circuit Judge




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