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

                             FOR THE TENTH CIRCUIT                          January 28, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
HAROLD M. NYANJOM,

      Plaintiff - Appellant,

v.                                                          No. 15-3148
                                                   (D.C. No. 6:12-CV-01461-JAR)
HAWKER BEECHCRAFT CORP.,                                      (D. Kan.)

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BACHARACH, O’BRIEN, and PHILLIPS, Circuit Judges.
                 _________________________________

      Harold Nyanjom sued his former employer, Hawker Beechcraft Corporation

(HBC), for violations of the Americans with Disabilities Act (ADA) and the Kansas

Act Against Discrimination (KAAD)—alleging that HBC discriminated against him

because he is visually impaired and retaliated against him for complaining about the

discrimination. On cross-motions for summary judgment, the district court found in

favor of HBC. Exercising our jurisdiction under 28 U.S.C. § 1291, we affirm.



      *
        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 This order and judgment is not binding precedent,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.
                                  I.    Background

      Harold Nyanjom has been virtually blind in his left eye since birth. He worked

as an at-will employee for HBC from January 22, 1999, to June 1, 2011. HBC

manufactures aircraft for general aviation and military purposes.

      When he started in 1999, Mr. Nyanjom worked as a sheet-metal assembler for

various types of aircraft and was responsible for writing tags identifying

non-conforming parts. He did not request special accommodations for his visual

impairment, nor did HBC impose any work-related restrictions. Over the next

decade, he occasionally switched jobs within the company, working as a

rivet-machine operator, an assembly inspector, and a conformity inspector, still with

no accommodations or restrictions. When the aviation industry hit hard times during

economic downturns, he was “bumped” to previous positions under the terms of a

collective-bargaining agreement that mandated the retention and reassignment of

more senior employees during a reduction in force or layoff. And so in 2010,

Mr. Nyanjom found himself back working as a sheet-metal assembler.

      Upon reassignment, Mr. Nyanjom began a letter-writing campaign to his

optometrist, asking her to attest to HBC that he could not safely perform a list of

tasks required for sheet-metal assembly—a request she denied.1 And, for the first

time, Mr. Nyanjom requested accommodations to protect his eyes (beyond the

protective eyewear already provided), including better overhead lighting,

      1
       The optometrist explained in her notes: “I can’t write a letter stating he can’t
do something that he is capable of. He has worked in sheet metal in the past & has a
good performance record.” R., Vol. II at 536.
                                           2
freestanding lamps, magnification devices, large-print assembly instructions and

blueprints, and an assistant. HBC was unwilling to revamp the plant’s overhead

lighting, but it provided the lamps, began converting the documents to large print,

stationed an experienced sheet-metal assembler at Mr. Nyanjom’s side, and offered to

have a company ergonomist evaluate Mr. Nyanjom’s workspace.

      Still, these accommodations did not satisfy Mr. Nyanjom so he began a quest

for benefits. He twice applied for—and was denied—disability benefits through the

Social Security Administration (SSA).2 He was more successful with his application

for short-term disability benefits through HBC: the company approved those benefits

and placed him on a one-year medical leave of absence per its company policy

(beginning in September 2010). Mr. Nyanjom then applied for and received

Supplemental Security Income disability benefits through the SSA (effective March

2011) and disability retirement benefits from HBC (based on a termination date of

June 1, 2011). Mr. Nyanjom repeatedly affirmed in these applications that he was

permanently disabled and unable to work.

      Mr. Nyanjom also filed complaints with the Kansas Human Rights

Commission (KHRC) and the Equal Employment Opportunity Commission (EEOC),

in which he represented (contrary to statements within his benefit applications) that

he was able to work with reasonable accommodations. He alleged that HBC

discriminated against him, denied him those reasonable accommodations,

      2
         The SSA denied his first application because he was still working every day.
It denied his second application because Mr. Nyanjom and his wife had too many
assets to qualify for benefits.
                                           3
involuntarily transferred him, put him on an involuntary medical leave of absence,

denied him long-term disability benefits, refused to transfer him to a

technical-specialist position, refused to rehire him, and retaliated against him. The

KHRC found “[p]robable [c]ause to credit” his allegations, R., Vol. I at 36, and the

EEOC found “reasonable cause to believe that a violation of the law has occurred,”

id. at 26.3

       Having secured a right-to-sue letter, Mr. Nyanjom filed this lawsuit in the

United States District Court for the Southern District of New York, where HBC’s

Chapter 11 bankruptcy was pending. That court transferred the case to the District of

Kansas, where it was stayed until HBC filed a bankruptcy-court-approved stipulation

permitting Mr. Nyanjom to proceed with litigation to liquidate the value of his claim.

(Without such a stipulation, the claim would have been discharged as part of the

confirmed bankruptcy plan.) Discovery proceeded, and both parties moved for

summary judgment. The district court resolved the case in HBC’s favor in a

comprehensive, 44-page memorandum and order. Mr. Nyanjom timely appealed,

proceeding pro se.




       3
         Mr. Nyanjom also filed a separate administrative complaint that alleged
retaliation based on his involuntary retirement and the failure to pay disability
retirement benefits before May 2011. But the KHRC found that “the available
evidence did not support” those allegations, R., Vol. I at 48, and the EEOC adopted
that finding, id. at 29.

                                           4
                                    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.

       “[A]lthough our review is de novo, we conduct that review from the

perspective of the district court at the time it made its ruling, ordinarily limiting our

review to the materials adequately brought to the attention of the district court by the

parties.” Id. Like the district court, we “have a limited and neutral role in the

adversarial process, and are wary of becoming advocates who comb the record of

previously available evidence and make a party’s case for it.” Id. at 672.

                                 A.       Discrimination

       Mr. Nyanjom first argues that the district court erred in dismissing his

discrimination claims under the ADA, 42 U.S.C. §§ 12101-12213, and the KAAD,

Kan. Stat. Ann. §§ 44-1001 to 1013. The ADA prohibits “discriminat[ion] against a

                                             5
qualified individual on the basis of disability 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). The KAAD also makes it unlawful for an employer to discriminate

against an employee because of a disability. Kan. Stat. Ann. § 44-1009(a)(1).

       We consider Mr. Nyanjom’s discrimination claims under the ADA and the

KAAD in tandem because the same standards and burdens govern both claims.

Kinchion v. Cessna Aircraft Co., 504 F. Supp. 2d 1137, 1142 (D. Kan. 2007);

Holopirek v. Kennedy & Coe, LLC, 303 F. Supp. 2d 1223, 1229 n.1 (D. Kan. 2004);

see also Aramburu v. Boeing Co., 112 F.3d 1398, 1403 & n.3 (10th Cir. 1997)

(stating that the same standards and burdens apply to claims under the Civil Rights

Act of 1991, 42 U.S.C. § 1981; Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§§ 2000e-2 to -3; and the KAAD). Furthermore, neither side has argued that the

applicable provisions differ in any significant respect.

      To establish a prima facie case of discrimination, a plaintiff must show “(1) he

is disabled (or perceived as disabled) as defined by the ADA, (2) he is qualified to

perform the essential functions of his job with or without reasonable accommodation,

and (3) he suffered discrimination as a result of his disability.” Koessel v. Sublette

Cty. Sheriff’s Dep’t, 717 F.3d 736, 742 (10th Cir. 2013). The district court

concluded that Mr. Nyanjom was unable to show, with record evidence, that he was

qualified to perform the essential functions of his job with or without reasonable

accommodation—pointing out that Mr. Nyanjom repeatedly averred in applying for

                                            6
various disability benefits that he “would be unable to work for the remainder of his

life” because he is permanently and totally disabled, R., Vol. II at 274.

      We agree that Mr. Nyanjom failed to establish a prima facie case of

discrimination under the ADA or the KAAD. The district court conducted a

thorough and well-reasoned analysis of those claims, and we see no need to repeat it

here. We affirm the dismissal of the discrimination claims for substantially the same

reasons provided in the district court’s memorandum and order dated May 26, 2015.

                                  B.     Retaliation

      Mr. Nyanjom next argues that the district court erred in dismissing his

retaliation claims under the ADA, 42 U.S.C. § 12203(a), and the KAAD,

Kan. Stat. Ann. § 44-1009(a)(4). Again, we consider the ADA and KAAD claims

together. 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 district court found that Mr. Nyanjom was unable to establish the elements

of his retaliation claim. Yes, he engaged in protected activity by filing complaints

with the KHRC and the EEOC and by seeking reasonable accommodations. But the

                                           7
only materially adverse action that HBC took was placing Mr. Nyanjom on

involuntary medical leave after he requested accommodations for his visual

impairment. And HBC offered a legitimate, non-retaliatory reason for this action—

namely, that the company’s policy on incapacity rendered him ineligible to work.

Because Mr. Nyanjom could not point to any record evidence that this reason was a

pretext, his retaliation claim failed as a matter of law.

       Mr. Nyanjom’s opening brief does not contain a single argument about the

dismissal of his retaliation claim. Although he does contest the district court’s ruling

in his reply brief, we decline to consider those arguments because it is well-settled

that “[t]his court does not ordinarily review issues raised for the first time in a reply

brief.” Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000); see also Starkey ex rel.

A.B. v. Boulder Cty. Soc. Servs., 569 F.3d 1244, 1259 (10th Cir. 2009) (explaining

that this court will not consider additional evidence cited in a reply brief). We follow

this policy for “obvious” reasons: the delay “robs the appellee of the opportunity to

demonstrate that the record does not support an appellant’s factual assertions and to

present an analysis of the pertinent legal precedent that may compel a contrary

result,” and the policy “protects this court from publishing an erroneous opinion

because we did not have the benefit of the appellee’s response.” Stump, 211 F.3d

at 533. Mr. Nyanjom’s pro se status does not allow him to disregard the Federal

Rules of Appellate Procedure. See Garrett v. Selby Connor Maddux & Janer,

425 F.3d 836, 841 (10th Cir. 2005) (Fed. R. App. P. 28 “applies equally to pro se

litigants.” (internal quotation marks omitted)).

                                             8
      Even if Mr. Nyanjom had presented his retaliation arguments at the

appropriate stage of these proceedings, the outcome would be the same. We agree

with the district court that Mr. Nyanjom failed to establish a prima facie case of

retaliation under the ADA or the KAAD.

                               C.     Other Arguments

      Mr. Nyanjom also faults the district court for deeming his cross-motion for

summary judgment untimely and for finding that he did not follow procedural rules

in filing his sur-reply to HBC’s summary judgment motion. We need not address

these arguments because the district court took Mr. Nyanjom’s pro se status into

account and considered his cross-motion and sur-reply on the merits, going to great

efforts to decipher the arguments within his lengthy pleadings despite the myriad

technical deficiencies that plagued them.

      Finally, Mr. Nyanjom argues that the district court should have determined his

claims are exempt from bankruptcy discharge because the EEOC and the KHRC

found that HBC engaged in willful and malicious discrimination and retaliation. This

argument is meritless. Mr. Nyanjom does not refute the district court’s position that

it lacked jurisdiction to make such a determination, see R., Vol. II at 241 n.1. In any

event, Mr. Nyanjom’s claims were not discharged with other claims and debts that

arose before February 2013: the bankruptcy court approved a stipulation to allow him

to proceed with this litigation to liquidate his claim. Furthermore, to the extent

Mr. Nyanjom argues the EEOC’s and KHRC’s decisions required entry of summary



                                            9
judgment in his favor, the district court correctly articulated the limited evidentiary

value of administrative decisions. Id. at 263-64.

                                   III.   Conclusion

      Mr. Nyanjom has not demonstrated that the district court erred in dismissing

his disability or retaliation claims. We affirm the judgment of the district court.


                                            Entered for the Court


                                            Gregory A. Phillips
                                            Circuit Judge




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