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

                                 FOR THE TENTH CIRCUIT                         May 26, 2017
                             _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
ARNOLD ISELIN,

       Plaintiff - Appellant,

v.                                                           No. 16-5132
                                                 (D.C. No. 4:15-CV-00566-JED-TLW)
THE BAMA COMPANIES, INC.,                                    (N.D. Okla.)

       Defendant - Appellee.

------------------------------

EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,

       Amici Curiae.
                             _________________________________

                                 ORDER AND JUDGMENT*
                             _________________________________

Before BRISCOE, HOLMES, and PHILLIPS, Circuit Judges.
                  _________________________________

        In this employment-discrimination case based on disability, Arnold Iselin appeals

from a district court order that dismissed his amended complaint against The Bama




        *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Companies, Inc. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part,

reverse in part, and remand for further proceedings.

                                      BACKGROUND

       Iselin worked for Prime Industrial Recruiters, Inc., a temporary employment

agency. On January 7, 2015, Prime assigned Iselin to work for Bama “as a general

production worker.” Aplt. App. at 31. Prime paid Iselin’s salary, but Bama determined

his work assignments, pay rate, work hours, and job duties.

       Both Prime and Bama allegedly knew when they hired Iselin that he was disabled,

either due to a torn rotator cuff, an unspecified back problem, or both. In April 2015,

Bama moved Iselin to a different work location because the work he had been doing “was

too hard on his back.” Id. Iselin continued working in the general production job until

either June 11 or June 16—the complaint provides both dates.

       On June 16, Bama offered to make Iselin a permanent employee and give him a

raise, provided he pass a “Physical Demand Assessment” (PDA). Id. Iselin underwent

the PDA on June 18. He alleges that despite performing all of the required tasks, Bama

advised him the next day that he had not passed the PDA and that his employment was

therefore terminated.

       Iselin obtained a right-to-sue letter from the Equal Employment Opportunity

Commission and then sued Bama under the Americans with Disabilities Act (ADA) of

1990, 42 U.S.C. § 12112, as amended by the ADA Amendments Act of 2008. In an

amended complaint, he claimed (1) discriminatory termination, (2) discriminatory failure

to hire, (3) failure to accommodate, and (4) misuse of employment testing. Throughout

                                             2
the complaint, Iselin alleged that he “was qualified and able to perform the essential

functions of his position as a general production worker for [Bama], and he did perform

these essential functions” with “occasion[al] . . . reasonable accommodation” until June

2015. Aplt. App. at 32, 33.

       On Bama’s motion, the district court dismissed the complaint for failure to state a

claim. The court concluded that Iselin’s first three claims failed because he did not pass

the PDA, which showed “he could not perform the essential functions of [his] job,” id. at

69, and he did not allege an “accommodation that [Bama] could have made,” id. at 70.

The court found that Iselin’s fourth claim—misuse of employment testing—failed

because the ADA allows an employer to condition new employment on a medical exam,

and Bama was offering Iselin a new job.

       As explained below, we reverse the dismissal of Iselin’s first three claims and

affirm the dismissal of his fourth claim.

                                       DISCUSSION
                                  I. Standard of Review

       We review a Rule 12(b)(6) dismissal de novo. Childs v. Miller, 713 F.3d 1262,

1264 (10th Cir. 2013). In doing so, “we accept as true the well pleaded factual

allegations and then determine if the plaintiff has provided enough facts to state a claim

to relief that is plausible on its face.” Hogan v. Winder, 762 F.3d 1096, 1104 (10th Cir.

2014) (internal quotation marks omitted). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Id. (internal quotation marks


                                             3
omitted). “The 12(b)(6) standard does not require that [the] Plaintiff establish a prima

facie case in [the] complaint, but rather requires only that the Plaintiff allege enough

factual allegations in the complaint to set forth a plausible claim.” Pueblo of Jemez v.

United States, 790 F.3d 1143, 1172 (10th Cir. 2015) (internal quotation marks omitted).

                               II. Disability Discrimination
                                A. Essential Job Functions

       The ADA “prohibits employers from discriminating against employees on the

basis of disability and requires employers to make ‘reasonable accommodations’ to

‘qualified individuals,’ unless the accommodations impose an undue hardship on the

employer.” EEOC v. TriCore Reference Labs., 849 F.3d 929, 933 (10th Cir. 2017)

(brackets omitted) (quoting 42 U.S.C. §§ 12112(a), (b)(5)(A)). “The term ‘qualified

individual’ means 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).

       A job function may be considered essential for a variety of reasons, including (1)

“the reason the position exists is to perform that function”; (2) “there are a limited

number of employees available among whom the performance of that job function can be

distributed”; and/or (3) “the incumbent in the position is hired for his or her expertise or

ability to perform” a highly specialized function. 29 C.F.R. § 1630.2(n)(2). Evidence

showing that a particular function is essential may include:

       (i) The employer’s judgment as to which functions are essential;
       (ii) Written job descriptions prepared before advertising or interviewing
       applicants for the job;
       (iii) The amount of time spent on the job performing the function;

                                              4
       (iv) The consequences of not requiring the incumbent to perform the
       function;
       (v) The terms of a collective bargaining agreement;
       (vi) The work experience of past incumbents in the job; and/or
       (vii) The current work experience of incumbents in similar jobs.

Id. § 1630.2(n)(3).

       As noted above, the district court determined that Iselin’s failure to pass the PDA

shows he could not perform the essential functions of a general production worker. There

are two problems with this determination.

       First, Iselin alleged that he “was able to perform all of the tasks he was asked to

perform during his [PDA]” and that Bama did not request any “medical information . . .

or examinations” during the first five months he worked as a general production worker.

Aplt. App. at 31 (emphasis added). Consequently, Bama’s “advise[ment] . . . [that] he

had not passed [the PDA],” id., does not necessarily mean that Iselin could not perform

essential job functions. There may be other reasons that Bama advised Iselin he did not

pass that are unrelated to the essential job functions. It is inappropriate at the motion-to-

dismiss stage to resolve this factual discrepancy, as the district court evidently did, in

Bama’s favor. See Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)

(explaining that resolving a Rule 12(b)(6) motion requires a court to “view [well-plead

factual] allegations in the light most favorable to the plaintiff”). Though we “weigh

heavily the employer’s judgment regarding whether a job function is essential,” the

employer’s judgment is not dispositive. See Hennagir v. Utah Dep’t of Corr., 587 F.3d

1255, 1262 (10th Cir. 2009) (analyzing multiple factors to determine whether a

certification was an essential job function). Rather, the employer’s judgment is just one

                                              5
factor that we consider, albeit an important one. Id.; 29 C.F.R. § 1630.2(n)(3)(i). By

concluding that Iselin’s failure to pass the PDA meant he could not perform the essential

functions, the district court made an impermissible inference in Bama’s favor.

       Second, the complaint’s allegations support an inference that Iselin had performed

the essential functions of a general production worker throughout his tenure with Bama.

An employee’s ability to perform the essential functions of a job in the past indicates an

ability to perform that job in the present. See, e.g., Chalfant v. Titan Distrib., Inc.,

475 F.3d 982, 990 (8th Cir. 2007) (despite employer’s assertion that employee had failed

a physical examination, employee established he could perform the essential functions of

his desired job by showing he had performed the job in the past); D’Angelo v. ConAgra

Foods, Inc., 422 F.3d 1220, 1234 n.6 (11th Cir. 2005) (stating that employee’s “prior job

performance [working around moving equipment] create[d] a genuine issue of material

fact as to whether [employee] was able to perform the essential function of working

around moving equipment”); Rizzo v. Children’s World Learning Ctrs., Inc., 173 F.3d

254, 260 (5th Cir. 1999) (rejecting employer’s argument that hearing-impaired employee

was not qualified to safely drive a school van, given the lack of evidence that the

employee “ever had any problems [in the past] driving the van”). By neglecting Iselin’s

temporary-work experience at Bama, the district court ignored several factors that we

consider for the essential-job-function inquiry, namely, “[t]he current work experience of

incumbents in similar jobs” and “[t]he work experience of past incumbents in the job.” 29

C.F.R. § 1630.2(n)(3). But let us be clear—although we will infer from the pleadings



                                               6
that Iselin could perform the essential job functions, we are not foreclosing the possibility

that discovery evidence may show otherwise.

       Still, Bama suggests that we must defer to its business judgment that Iselin could

not perform essential job functions. Granted, “[t]here is no doubt in this circuit that it is

an employer’s province to define the job and the functions required to perform it.”

Hawkins v. Schwan’s Home Serv., Inc., 778 F.3d 877, 890 (10th Cir.) (emphasis added;

brackets and internal quotations omitted), cert. denied, 136 S.Ct. 690 (2015). But it is the

court’s province to determine whether a plaintiff has plausibly alleged an element of his

ADA claim, such as whether he can perform the essential functions of the job. See

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“Determining whether a complaint states a

plausible claim for relief will[ ] . . . be a context-specific task that requires the reviewing

court to draw on its judicial experience and common sense.”). Iselin’s complaint alleges

that he can perform the essential functions and that he had indeed performed them for

over five months. Although there are no allegations as to what those functions might

actually be, he is not “require[d] . . . to set forth a prima facie case for each element.”

George v. Urban Settlement Servs., 833 F.3d 1242, 1247 (10th Cir. 2016) (internal

quotation marks omitted). Rather, he must simply provide enough factual allegations to

“permit the court to infer more than the mere possibility of misconduct” so “that [he] is

entitled to relief.” Iqbal, 556 U.S. at 679 (internal quotation marks omitted).1


       1
         We express no opinion as to whether Iselin could establish a prima facie case
if called to do so in summary-judgment proceedings. See Koessel v. Sublette Cty.
Sheriff’s Dep’t, 717 F.3d 736, 742 (10th Cir. 2013) (“To establish a prima facie case
of discrimination under the ADA, [Iselin] must show (1) he is disabled (or perceived
                                               7
       Bama further contends that Iselin’s ability to do the general-production-worker job

in the past is irrelevant to whether he could perform that job going forward. Bama

explains that “the two positions are different” because Iselin initially performed the job

for “a temporary time period,” Aplee. Br. at 10 (emphasis omitted), for a different

employer (Prime), and for a lesser wage, id. at 11-12. But these distinguishing features

say very little, if anything, about the essential functions of the general-production-worker

job as Iselin initially performed them or as he would have performed them going forward.

While factual discrepancies may become relevant at a later phase of this case, there is

nothing in Iselin’s complaint distinguishing his job as initially performed from the job he

would have performed but for Bama’s assertion that he had not passed the PDA.

       Finally, Bama argues “Iselin failed to plead any facts whatsoever that suggest

Bama could have accommodated” him. Aplee. Br. at 13. But Iselin sufficiently pleaded

that a reasonable accommodation was available for his disability by alleging that he

successfully performed the essential functions of the job for five months, “on occasion

with a reasonable accommodation being made for him.” Aplt. App. at 33. At this stage

in the litigation, this factual allegation is enough to infer that Bama could reasonably

accommodate Iselin’s disability.

       Thus, the district court erred in dismissing Iselin’s first three claims for relief.




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.”).
                                               8
                                B. Medical Examinations

       The ADA generally prohibits an employer from using a medical exam to

determine the existence, nature, or severity of a disability. See 42 U.S.C.

§§ 12112(d)(2)(A), (4)(A). The limited circumstances under which medical exams are

permitted vary for job applicants and current employees. In the case of a job applicant,

an exam may be required “after an offer of employment has been made . . . and prior to

the commencement of the employment duties of such applicant,” so long as “all entering

employees are subjected to such an examination regardless of disability.” Id.

§ 12112(d)(3)(A). In the case of a current employee, an exam may be required if it is

“job-related and consistent with business necessity.” Id. § 12112(d)(4)(A).

       Iselin claims that Bama violated the ADA by requiring him to undergo a PDA. He

alleges that he was a Bama “employee”; that he performed the essential functions of his

job for nearly six months; and that he “was not required to take a [PDA] prior to

beginning his employment on January 7, 2015.” Aplt. App. at 34.

       The district court characterized Iselin as a job applicant, reasoning that he “was

applying for a different position,” id. at 71, given that the job he performed for nearly six

months differed from the job he sought in terms of employer, wage, and job permanency,

id. at 72. Because Iselin had not commenced his duties in this “different position” at the

time of the PDA, the district court concluded that Bama had lawfully required the PDA.

Consequently, the district court dismissed Iselin’s misuse-of-employment-testing claim.

       We agree with the district court’s result, but not its reasoning. Iselin alleges

repeatedly throughout the complaint that he was a Bama “employee.” Id. at 32, 33, 34.

                                              9
But in his misuse-of-employment-testing claim, he quotes the ADA’s medical-exam

provision governing job applicants. Further, his complaint lacks allegations that would

support a misuse claim under either characterization of his relationship with Bama. For

instance, if he was merely a job applicant in June 2015, he does not mention whether “all

entering employees are subjected to such an examination regardless of disability,”

42 U.S.C. § 12112(d)(3)(A). And if he was a Bama employee, he does not mention

whether the PDA was “job-related and consistent with business necessity,” id.

§ 12112(d)(4)(A).

       A complaint must provide the defendant “not only fair notice of the nature of the

claim, but also grounds on which the claim rests.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 n.3 (2007) (internal quotation marks omitted). Because Iselin’s misuse claim is

both internally inconsistent and devoid of necessary factual allegations, it fails “to raise a

right to relief above the speculative level,” id. at 555, and it was properly dismissed.2

                                        CONCLUSION

       We affirm the district court’s dismissal of Iselin’s fourth claim for relief (misuse

of employment testing). We reverse the district court’s dismissal of Iselin’s other claims,




       2
        Iselin argues that the district court should have granted him leave to amend
his complaint. But he never asked the district court for that opportunity. Thus, there
was no error. See Garman v. Campbell Cty. Sch. Dist. No. 1, 630 F.3d 977, 986
(10th Cir. 2010) (requiring a written motion in the district court for leave to amend).
                                              10
and we remand this case for further proceedings.


                                            Entered for the Court


                                            Gregory A. Phillips
                                            Circuit Judge




                                           11
