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

                             FOR THE TENTH CIRCUIT                           June 8, 2017
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
ANNA MARIE PITTMAN,

      Plaintiff - Appellant,

v.                                                         No. 16-5129
                                              (D.C. No. 4:14-CV-00728-CVE-FHM)
AMERICAN AIRLINES, INC.,                                   (N.D. Okla.)

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

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

      Anna Marie Pittman appeals the summary judgment entered in favor of her

employer on her claims of employment retaliation on the basis of race, in violation of

42 U.S.C. § 1981, and disability, in violation of the Americans with Disabilities Act,

42 U.S.C. § 12203(a) (ADA). She has abandoned all other claims for relief. We

exercise jurisdiction under 28 U.S.C. § 1291 and affirm.




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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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

        We provide a brief factual summary to frame the issues presented for review.

Ms. Pittman is an African-American with dyslexia, hearing problems, and a resultant

learning disability, who worked for the defendant airline (employer) for many years

as a building cleaner. In 2012 the employer outsourced all of the building-cleaner

positions, but negotiated with its union to allow those holding outsourced building-

cleaner jobs to move into maintenance support positions. Consequently, Ms. Pittman

and five other former building cleaners applied for jobs as hazardous waste

maintenance workers. To be eligible for that position, the applicant was required to

know how to safely clean up chemical spills by accessing an online database and

reading the cleanup-instructions for specific chemicals. The employer provided

classroom instruction and training to the six applicants, including Ms. Pittman. As

part of the training, the applicants shadowed senior hazardous waste maintenance

support employees for six months. After 180 days in the position, the applicants

were required to pass a test to demonstrate their competence. This test was known as

the 180-day test.

        During the test-preparation period, Ms. Pittman complained to her supervisor

that she was not being adequately prepared for the test because she was a black

woman. She did not seek accommodation for dyslexia or hearing problems.

Ms. Pittman received at least two weeks’ notice of her test date, December 4, 2013.

The 180-day test was administered orally. Even so, she was still required to read and

understand the online clean-up instructions. She did not pass the test because she

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was not able to utilize the online database to find clean-up instructions for a specific

chemical or explain the proper remediation technique.

         Ordinarily, an employee who failed the 180-day test would return to her prior

job. But because Ms. Pittman’s prior job had been outsourced, she could not return

to it, so her employment was terminated. The collective bargaining agreement

between Ms. Pittman’s union and the employer required employees to bid for jobs by

seniority. Notwithstanding this rule, the union and the employer arranged for another

position suitable for Ms. Pittman. A settlement agreement memorialized the

arrangement, and Ms. Pittman was asked to sign it. She did so, and began working at

the new position on January 21, 2014.

         Ms. Pittman subsequently filed the underlying lawsuit alleging the employer

discriminated and retaliated against her on the bases of race, gender, and disability.

The district court rejected the employer’s argument that the settlement agreement

precluded Ms. Pittman’s claims, ruling that the agreement “did not constitute a

knowing and voluntary waiver of all of plaintiff’s claims against defendant resulting

from her termination.” Aplt. App. Vol. 4, at 406. The court nevertheless granted

summary judgment to the employer on the discrimination and retaliation claims.

Ms. Pittman appeals, pursuing only her race and ADA retaliation claims.

   II.      GOVERNING LAW

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

the evidence and drawing all reasonable inferences in favor of Ms. Pittman as the

nonmoving party. Smothers v. Solvay Chems., Inc., 740 F.3d 530, 538 (10th Cir.

                                            3
2014). Summary judgment is appropriate where “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). “A fact is material only if it might affect the outcome of the suit under

the governing law. And a dispute over a material fact is genuine only if the evidence

is such that a reasonable jury could return a verdict for the nonmoving party.” Foster

v. Mountain Coal Co., 830 F.3d 1178, 1186 (10th Cir. 2016) (internal quotation

marks omitted).

      The ADA and § 1981 prohibit retaliation based on disability and race. See

Univ. of Tex. Sw. Med. Ctr. v. Nassar, __ U.S. __, 133 S. Ct. 2517, 2529 (2013)

(§ 1981); Foster, 830 F.3d at 1186 (ADA). Where, as here, the plaintiff relies on

circumstantial evidence of retaliation, the following three-step analysis applies:

(1) the plaintiff must establish a prima facie case of retaliation; (2) the employer must

provide a legitimate non-discriminatory reason for the adverse employment action;

and (3) the plaintiff must demonstrate “at least a genuine issue of material fact as to

whether the employer’s proffered legitimate reason is genuine or pretextual.”

Smothers, 740 F.3d at 538. “The plaintiff may establish pretext by showing such

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the

employer’s proffered legitimate reasons for its action that a reasonable factfinder

could rationally find them unworthy of credence and hence infer that the employer

did not act for the asserted non-discriminatory reasons.” Bennett v. Windstream

Commc’ns, Inc., 792 F.3d 1261, 1267 (10th Cir. 2015) (internal quotation marks

omitted).

                                           4
   To establish a prima facie case of retaliation, Ms. Pittman was required to show:

(1) she engaged in protected opposition to discrimination; (2) a reasonable employee

would have found the challenged action materially adverse; and (3) there is a causal

connection between the opposition and the adverse action. Twigg v. Hawker

Beechcraft Corp., 659 F.3d 987, 998 (10th Cir. 2011) (§ 1981); Selenke v. Med.

Imaging of Colo., 248 F.3d 1249, 1264 (10th Cir. 2001) (ADA).

   III.    DISCUSSION

      A.     ADA Retaliation

      As part of her prima facie burden, Ms. Pittman was required to show that she

engaged in “protected activity” by demonstrating that she made “an adequate request

for an accommodation sufficient to qualify as protected activity.” Foster, 830 F.3d at

1187; see id. at 1188 (“[R]ecogniz[ing] that a request for accommodation can

constitute protected activity supporting a retaliation claim.”). Such a request “must

make clear that the employee wants assistance for his or her disability.” Id. at 1188

(internal quotation marks omitted). “Unless an employer knows that an employee is

engaging in protected activity, it cannot retaliate against that employee because of

the protected conduct, as required by statute.” Jones v. U.P.S., Inc., 502 F.3d 1176,

1195 (10th Cir. 2007) (citing § 12203(a)).

      Ms. Pittman argues that she engaged in protected activity in the following

ways: (1) by presenting a doctor’s note to an unidentified person or department in

approximately 2000, allegedly stating she had a learning disability; (2) by requesting

oral administration of exams and additional exam preparation in the spring and fall of

                                             5
2013; and (3) by presenting a doctor’s note after she failed the 180-day test stating

she had dyslexia and required oral exams. Ms. Pittman has presented no evidence

that any requests for oral testing or other accommodation were due to a disability.

Her reliance on a vague doctor’s note submitted in approximately 2000 is not

sufficiently direct and specific to constitute notification of a disability. Moreover,

the pages of the appellate appendix on which she relies to support this point have

been redacted to obscure the operative testimony. See Aplt. App. Vol. 3, at 252. But

even crediting her argument that the note stated she had dyslexia and hearing loss and

that she required oral testing, she has cited to no evidence that she informed anyone

involved in administering tests or in terminating her employment that she had a

disability.

       Ms. Pittman relies on Robertson v. Las Animas County Sheriff’s Department,

500 F.3d 1185, 1196-97 (10th Cir. 2007), to argue that the employer knew of her

disability so her failure to inform anyone that her requests for oral testing and

additional training were based on a disability was immaterial. In Robertson this court

reversed the summary judgment on the plaintiff’s Title II ADA claim (applicable to

public entities) because the facts established that a defendant knew the plaintiff had

difficulty hearing and when he was booked into jail, the officers inventoried hearing

aid batteries. Id. Ms. Pittman claims, without citation to the record, that Mr. Beaston

was her manager in 2007, so he was aware of a note, signed by David Marks as

supervisor and placed in her file, stating she was “unable to complete [a performance

advisory] due to learning disability,” Aplt. App. Vol. 3, at 302-03. No reasonable

                                            6
juror could find that this note notified the employer that she was requesting

accommodation for a disability in preparation for the 180-day test in December 2013.

See Twigg, 659 F.3d at 1009 (affirming summary judgment because no reasonable

juror could find a basis for plaintiff’s claim).

       In addition, the doctor’s note dated December 17, 2013, submitted after

Ms. Pittman failed the 180-day test, could have been neither a request for a

reasonable accommodation of a disability nor the basis of unlawful retaliation

because Ms. Pittman’s employment had already been terminated. See Kilcrease v.

Domenico Transp. Co., 828 F.3d 1214, 1226 (10th Cir. 2016) (holding where the

adverse employment decision was made before the protected activity occurred, the

plaintiff “cannot establish the requisite causal connection between his protected

activity and the adverse employment action”).1 Therefore, we affirm the district

court’s grant of summary judgment to the employer on Ms. Pittman’s ADA

retaliation claim.

   B. Race Retaliation

       Ms. Pittman also contends she engaged in protected opposition to race

discrimination when she complained to her supervisor during the six-months training

period leading up to the 180-day test that she was not being adequately prepared for

the test because she is a black woman. Thus, she satisfied the first element of a


       1
        Ms. Pittman argues that the settlement agreement itself was retaliatory
because she received no money for signing it. We fail to see how arranging with her
union to find her an alternate position after her original position had been outsourced
and she failed the 180-day test was retaliatory.
                                             7
prima facie case—she engaged in protected opposition to discrimination.2 She also

satisfied the second element—a reasonable employee would have found termination

of her employment materially adverse. But she did not establish the third element.

      For the third element of a prima facie case—a causal connection between the

opposition and the adverse action—Ms. Pittman relies on the temporal proximity

between her opposition to race discrimination and the adverse employment action.

She maintains that a time lapse as long as six weeks between the protected conduct

and the adverse employment action can support an inference of unlawful retaliation,

citing Ramirez v. Oklahoma Department of Mental Health, 41 F.3d 584, 596

(10th Cir. 1994) (holding time span of one and one-half months between protected

activity and adverse employment action did not warrant dismissal of retaliation

claim), overruled on other grounds by Ellis v. University of Kansas Medical Center,

163 F.3d 1186, 1194-97 (10th Cir. 1998). But Ms. Pittman testified that she could

not remember when she complained that she was not being adequately prepared for

the 180-day test. Aplt. App. Vol. 3, at 234 (the operative language is redacted, but

the content is apparent from the context). Consequently, she failed to make out a

prima facie case of race retaliation.



      2
         The employer contends that Ms. Pittman did not have an objectively
reasonable belief that she was opposing race discrimination. We, like the district
court, assume that she did. See Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015-16
(10th Cir. 2004) (“A plaintiff need not convince the jury that his employer had
actually discriminated against him; he need only show that when he engaged in
protected opposition, he had a reasonable good-faith belief that the opposed behavior
was discriminatory.”).
                                          8
   C. Pretext

      Even if Ms. Pittman satisfied the prima facie showings for race and disability

retaliation, she failed to establish that the reason for terminating her employment—

her job as a building cleaner had been outsourced and she failed the 180-day test so

was ineligible for the hazardous-waste-maintenance position—was a pretext for

unlawful retaliation. Ms. Pittman asserts that she established pretext in various ways.

      First, she claims that she was told failing the 180-day test was a

non-terminable event. She testified that her union representative, not management

personnel, told her this. Aplt. App. Vol. 3, at 228. Even so, Ms. Pittman points to no

evidence requiring the employer to find her another position, given that her former

job had been outsourced.

      Ms. Pittman also claims that the employer required her to take the 180-day test

while she was still under the sedation effects of a colonoscopy, and this was evidence

of pretext. But again, she has not cited to any record evidence that she told anyone of

her condition or requested to postpone the test. Our review of the record reveals that

she testified that she told “quite a few people” she did not want to take the test on

December 4, but did not say it was because she was still feeling the effects of the

sedation. Aplt. App. Vol. 3, at 243.

      Ms. Pittman also relies on an email chain among the employer’s personnel

created shortly after her 180-day-test failure, which she claims demonstrates animus

toward her. She characterizes the emails follows: Mr. Beaston said he did not want

to “get stuck with her” and canceled her interim employment one day after he

                                            9
indicated that he would be a “good team player” and attempt to find her another job,

Aplt. App. Vol. 3, at 312; Mr. Nelson issued a directive to find her interim

employment following her test failure, but canceled the directive one day later; and

Mr. Voss advocated proactively pushing her off the payroll and indicated there were

“hiccups” in terminating her, id. at 310. Contrary to Ms. Pittman’s position,

however, the email chain among the employer’s personnel does not suggest that the

stated reason for terminating her was pretextual. No reasonable juror could conclude

that these statements made after Ms. Pittman failed the 180-day test and her

employment was to be terminated cast doubt on the employer’s legitimate non-

discriminatory reason for terminating her employment.

      Next, Ms. Pittman proffers as evidence of pretext the employer’s failure to

engage in the interactive process based on her submission of the December 2013

doctor’s note, and its failure to follow its own internal ADA policy requiring

assistance in securing alternative employment for her. “[B]efore an employer’s duty

to provide reasonable accommodations—or even to participate in the ‘interactive

process’—is triggered under the ADA, the employee must make an adequate request,

thereby putting the employer on notice.” Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299,

1315-16 (10th Cir. 2017) (internal quotation marks omitted). Again, the operative

portion of the doctor’s note was redacted, but even assuming it says Ms. Pittman has

dyslexia, the note says merely that she has dyslexia, “only oral Testing no written

Exams,” Aplt. App. Vol. 3, at 305. No reasonable juror could find that merely

submitting this brief doctor’s note after Ms. Pittman had already failed the 180-day

                                          10
test was sufficient to trigger the employer’s duty to engage in the ADA interactive

process and thus render the employer’s reasons for terminating her unworthy of

belief.

          Ms. Pittman further argues that the employer’s retaliatory intent is evidenced

by its decision to keep her in a “financial limbo,” Aplt. Opening Br. at 30, by

preventing her from collecting unemployment benefits during the six weeks her

union was negotiating an exception to the collective bargaining agreement to place

her in an alternate position. She alleged she was denied benefits because the

employer showed her as still on the payroll. Although Ms. Pittman included this

claim in her complaint, she made only brief mention of unemployment benefits in her

opposition to summary judgment (and did not argue it in her post-judgment motion),

and thus did not bring it to the district court’s attention or alert the employer to

address it. Consequently, the district court did not rule on it.

          On appeal, Ms. Pittman cites only to her complaint, which is not evidence.

Our review of the record reveals that she testified that she applied for unemployment

benefits, but was unable to receive them because “[t]hey said . . . I was still

employed.” Aplt. App. Vol. 3, at 249. We decline to address this argument for two

reasons: (1) we deem it waived, see Ecclesiastes 9:10-11-12, Inc. v. LMC Holding

Co., 497 F.3d 1135, 1141 (10th Cir. 2007) (“An issue is preserved for appeal if a

party alerts the district court to the issue and seeks a ruling.”); and (2) the

explanation for denying benefits is inadmissible hearsay, see Jaramillo v. Colo.

Judicial Dep’t, 427 F.3d 1303, 1314 (10th Cir. 2005) (“Hearsay testimony that would

                                             11
not be admissible at trial is not sufficient to defeat a motion for summary

judgment.”).

      Finally, Ms. Pittman contends that requiring her to sign the settlement

agreement constituted anticipatory retaliation. “[T]his form of preemptive

retaliation” refers to “[a]ction taken against an individual in anticipation of that

person engaging in protected opposition to discrimination.” Sauers v. Salt Lake Cty.,

1 F.3d 1122, 1128 (10th Cir. 1993). Ms. Pittman speculates that the employer was

concerned that she was “building a defense,” Aplt. Opening Br. at 36, and therefore

made her sign the “one-sided” agreement, id. She points to no evidence to support

this claim. No reasonable juror could conclude that the purpose of the settlement

agreement negotiated between Ms. Pittman’s union and the employer to place her in

an appropriate alternate position was to retaliate against her in anticipation that she

would engage in protected activity.

      In sum, the record reveals no evidence to call into question the employer’s

proffered legitimate non-discriminatory reason for terminating Ms. Pittman’s

employment as a building cleaner. And Ms. Pittman has produced no evidence

requiring the employer to find her an alternate position at all, let alone immediately

after she failed the 180-day test.3 Thus, we conclude that Ms. Pittman has not




      3
          Ms. Pittman claims that the position negotiated for her was available on the
date she failed the 180-day test. She cites no record support for this claim, but even
if true, she has failed to explain how the union rules would permit her to immediately
fill the position.
                                            12
demonstrated pretext and the district court correctly granted summary judgment to

the employer.

   IV.   CONCLUSION

      The judgment is affirmed.


                                          Entered for the Court


                                          Mary Beck Briscoe
                                          Circuit Judge




                                        13
