                                                                              FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                      UNITED STATES COURT OF APPEALS                     April 19, 2019
                                                                      Elisabeth A. Shumaker
                                    TENTH CIRCUIT                         Clerk of Court



 MICHELLE M. SORENSON,

               Plaintiff - Appellant,
                                                              No. 18-8012
 v.                                                  (D.C. No. 2:14-CV-00229-ABJ)
                                                                (D. Wyo.)
 CAMPBELL COUNTY SCHOOL
 DISTRICT,

               Defendant - Appellee.


                              ORDER AND JUDGMENT*


Before HOLMES, McKAY, and MORITZ, Circuit Judges.


       The Americans with Disabilities Act (the “ADA”) prohibits employers from

discriminating against disabled employees or retaliating against an employee for engaging

in protected activity. 42 U.S.C. §§ 12112(a), 12203(a). Michelle M. Sorenson sued the

Campbell County School District (the “School District”) for discriminating against her

because of her disability and then unlawfully retaliating against her. The district court



       *
               This Order and Judgment is not binding precedent, except under the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 Federal Rule of Appellate Procedure
32.1 and Tenth Circuit Rule 32.1.
granted summary judgment for the School District on both claims. Ms. Sorenson appeals

from that judgment and moves to supplement the appellate record. The School District,

in turn, asks that we affirm the district court’s judgment and moves to strike Ms.

Sorenson’s supplemental appendix. Exercising jurisdiction under 28 U.S.C. § 1291, we

deny Ms. Sorenson’s motion to supplement the record, grant the School District’s

motion to strike, and affirm the district court’s judgment.

                                             I

       Ms. Sorenson worked for the School District for almost twenty years. Although

she began as an attendance clerk, she worked her way up to a salaried position as a

computer specialist. In that role, Ms. Sorenson created statistical reports and used

software programs to create student class schedules.

       In 2001, Ms. Sorenson was diagnosed with multiple sclerosis—an incurable and

often debilitating disease of the brain and spinal cord, see Multiple Sclerosis, Mayo

Clinic, https://mayoclinic.org/diseases-conditions/multiple-sclerosis/symptoms-

causes/syc-20350269 (last visited Apr. 17, 2019). After sharing this diagnosis with the

School District, Ms. Sorenson continued working as a computer specialist for the next

seven years.

       But by 2008, Ms. Sorenson’s worsening condition prompted changes in her

professional life. For instance, because she struggled to walk long distances, the School

District offered to move her office to a more convenient location. She accepted this


                                             2
accommodation. Ms. Sorenson’s job title also changed in 2008 from computer specialist

to guidance clerk. This new hourly role paid far less than the salaried computer-specialist

position did.

       According to the School District, Ms. Sorenson asked for this change. At her

deposition, Ms. Sorenson admitted asking to change jobs and said that she gladly moved

to a lower-paying but lower-stress position. On appeal, however, Ms. Sorenson describes

the change as “a pretext” for discrimination. Aplt.’s Opening Br. at 11.

       Two years after changing jobs, Ms. Sorenson moved to a part-time position as a

guidance clerk. For the three years that she worked in this part-time position, Ms.

Sorenson alleges that the School District sometimes did not pay her for all the time that

she spent working from home.

       According to Ms. Sorenson, she never did the work of a guidance clerk but instead

kept working as a de facto computer specialist. Not so, the School District responds. It

alleges that Ms. Sorenson stopped working as a computer specialist once she transferred

to the guidance-clerk position. In fact, the School District points out that she could not

have done that work because, after leaving her computer-specialist position, she lost

access to the necessary computer programs.

       What is not disputed is that Ms. Sorenson’s condition worsened to the extent that

she could no longer work. In early February 2013, Ms. Sorenson and the School District

met to discuss her health and work schedule. On one School District employee’s retelling


                                              3
of the meeting, the School District offered to accommodate Ms. Sorenson’s needs, but she

declared that she could not and did not wish to keep working. Ms. Sorenson confirmed

this account in her deposition; she admitted that the School District offered to let her keep

working but that she declined this offer because she could no longer physically or

mentally do the job. She tells a different story, however, on appeal. Now she says that

the School District effectively barred her from returning to work by stripping her of

access to all computer programs the Monday after the February 2013 meeting. Either

way, the parties agree that Ms. Sorenson never returned to work after the meeting.

       For the next few months, Ms. Sorenson exhausted her leave while applying for

short-term and then long-term disability benefits. Her applications were successful, and

she was awarded both kinds of benefits in 2013. An eligibility criterion for long-term

disability is the inability to work.

       Ms. Sorenson’s tenure with the School District formally ended in June 2013. The

circumstances of her departure are contested. The School District says that Ms. Sorenson

willingly resigned. After all, she had repeatedly said that she could not, and would not,

return to work. Ms. Sorenson confirmed the School District’s version in her deposition.

Despite that testimony, Ms. Sorenson now contends that the School District wrongfully

fired her.

       After filing a charge with the Equal Employment Opportunity Commission and

getting a right-to-sue letter, Ms. Sorenson sued the School District in federal district


                                              4
court. Her suit alleged that, among other things, the School District discriminated and

retaliated against her in violation of the ADA. To support her discrimination claim, Ms.

Sorenson posited that the School District discriminated against her because of her

disability (multiple sclerosis) by (1) demoting her from computer specialist to guidance

clerk in 2008, and then from full-time to part-time guidance clerk in 2010; (2) changing

her job title (and pay) from computer specialist to guidance clerk, while still expecting her

to do the work of a computer specialist; and (3) by wrongfully firing her in 2013. Ms.

Sorenson also accused the School District of retaliating against her after she disclosed her

disability and requested accommodations.

       The district court entered summary judgment for the School District.1 Although

the court found that Ms. Sorenson was disabled under the ADA, it ruled that she could

not show a genuine dispute of material fact to support her discrimination claim. And

because the court found that she did not engage in any protected activity, it rejected her

retaliation claim as well. Thus, the court granted the School District summary judgment

on the discrimination and retaliation claims.



       1
              Although Ms. Sorenson had counsel through the complaint and motion-to-
dismiss stages, her counsel withdrew during the summary-judgment stage after he had not
heard from her for several weeks. This withdrawal left Ms. Sorenson to respond pro se to
the School District’s motion for summary judgment. We liberally construe that response
and any other pro se pleadings. See Requena v. Roberts, 893 F.3d 1195, 1205 (10th Cir.
2018), cert. denied, 139 S. Ct. 800 (2019). Though Ms. Sorenson initially appealed pro
se, counsel has represented her during this appeal, drafting her briefs and motions. Thus,
her appellate briefing does not benefit from such a liberal construction.

                                                5
       Ms. Sorenson now appeals from that order. She asks that we reverse the district

court’s order granting the School District summary judgment on her discrimination and

retaliation claims. To support these arguments, Ms. Sorenson moves to supplement the

record. The School District, in turn, moves to strike Ms. Sorenson’s supplemental

appendix.

                                             II

       Ms. Sorenson’s appeal presents us with two overarching questions. First, should

we allow her to supplement the record? And second, did the district court err in granting

the School District summary judgment on the discrimination and retaliation claims? Our

answer to both questions is “no.”

                                             A

       Ms. Sorenson moved to supplement the record to include a medical report, a court

report, and several emails. These materials amount to ten pages, none of which were in

the record before the district court. And Ms. Sorenson has offered no explanation in her

motion for why she failed to give this information to the district court. The School

District opposed this motion.

       This court reserved judgment on Ms. Sorenson’s motion to add the ten pages that

she identified in her motion to supplement. A few weeks later, we issued another order

reminding Ms. Sorenson that, absent a new motion to supplement, her supplemental

appendix may include only those ten pages.


                                             6
       Ms. Sorenson then filed an 845-page supplemental appendix. The School District

moved to strike this appendix and again asked us to deny Ms. Sorenson’s original motion

to supplement.

       In reviewing a summary-judgment order, we ordinarily may not “consider

evidence not before the district court.” John Hancock Mut. Life Ins. Co. v. Weisman, 27

F.3d 500, 506 (10th Cir. 1994); see Cornhusker Cas. Co. v. Skaj, 786 F.3d 842, 862–63

(10th Cir. 2015) (“We undoubtedly have discretion to deny a motion to supplement the

record on appeal when the materials sought to be added to the record were never before

the district court.”). Although “under some circumstances, we have an inherent equitable

power to supplement the record on appeal,” United States v. Kennedy, 225 F.3d 1187,

1192 (10th Cir. 2000), we conclude that no such circumstances are present here.

       Ms. Sorenson could have presented the district court with the contents of the ten

pages, which she has attached to her motion to supplement. But she did not. In a

“Preamble” to her supplemental appendix—but not in her motion to supplement—Ms.

Sorenson suggests that she did not provide these documents (as well as other documents

in the supplemental appendix) to the district court because her counsel withdrew from the

case just as the School District moved for summary judgment. Aplt.’s Suppl. App., Vol.

I, at ii–iii. That her counsel withdrew from the case is unfortunate; that fact, however, did

not relieve Ms. Sorenson from the ordinary burdens of litigation, including putting the

necessary documents to defend against summary judgment into the record. See Requena,


                                             7
893 F.3d at 1205 (noting that pro se litigants “must comply with the same rules of

procedure as other litigants”). In any event, we would be disinclined to allow Ms.

Sorenson to rely on this explanation as a justification for not presenting the documents to

the district court because she did not offer that explanation when she filed her motion to

supplement. See FED. R. APP. P. 27(a)(2)(A) (“A motion must state with particularity the

grounds for the motion, the relief sought, and the legal argument necessary to support

it.”). Instead, that motion offers no explanation whatsoever for Ms. Sorenson’s failure to

present these documents (or, indeed, any of her supplemental documents) to the district

court. For the foregoing reasons, we exercise our discretion to deny Ms. Sorenson’s

motion to supplement the record with the ten pages at issue in her motion but not

presented to the district court.

       As for Ms. Sorenson’s 845-page supplemental appendix, we grant the School

District’s motion to strike that appendix. That she could have presented this information

to the district court is reason enough to strike the supplemental appendix. See United

States v. Maden, 64 F.3d 1505, 1510 n.3 (10th Cir. 1995) (granting motion to strike

appendix because the party did not present the information to the district court). But, by

filing a supplemental appendix that contravened this court’s orders, Ms. Sorenson—or,

more accurately, Ms. Sorenson’s counsel—has obliterated any doubt as to the correctness

of the conclusion to strike the appendix.

       In summary, we deny Ms. Sorenson’s motion to supplement and grant the School


                                             8
District’s motion to strike the supplemental appendix. We will neither consider nor cite

any portion of these extra-record materials in resolving the merits of this case.2

                                              B

       Having defined the boundaries of the appellate record, we now must decide

whether the district court erred in granting the School District summary judgment on Ms.

Sorenson’s discrimination and retaliation claims. We review de novo a district court’s

grant of summary judgment. See Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1180 (10th

Cir. 2018). Summary judgment is proper when “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). Although the nonmovant benefits from all reasonable inferences from the record,

“[o]nly disputes over facts that might affect the outcome of the suit under the governing

law” can stop a district court from entering summary judgment. Amparan v. Lake Powell

Car Rental Cos., 882 F.3d 943, 947 (10th Cir. 2018) (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). And “if the nonmovant bears the burden of persuasion

on a claim at trial, summary judgment may be warranted if the movant points out a lack of



       2
              “[I]n an abundance of caution,” we have reviewed the contents of this
supplemental material. Cornhusker, 786 F.3d at 864. Having done so, we note that, even
if we considered the substance of either the ten pages at issue in Ms. Sorenson’s motion
to supplement or the 845-page supplemental appendix, we would still affirm the district
court’s order granting the School District summary judgment on Ms. Sorenson’s
discrimination and retaliation claims. Cf. Holmes v. Utah Dep’t of Workforce Servs., 483
F.3d 1057, 1068 (10th Cir. 2007) (noting that, even if the court considered the
supplemental material, its holding would not change).

                                              9
evidence to support an essential element of that claim and the nonmovant cannot identify

specific facts that would create a genuine issue.” Water Pik, Inc. v. Med-Sys., Inc., 726

F.3d 1136, 1143–44 (10th Cir. 2013). Applying this standard, we hold that the district

court did not err in granting the School District summary judgment on Ms. Sorenson’s

discrimination and retaliation claims.

                                             1

       The ADA prohibits employers from discriminating on the basis of disability. See

Punt v. Kelly Servs., 862 F.3d 1040, 1047–48 (10th Cir. 2017). As relevant here, there

are two types of ADA discrimination claims—disparate-treatment and failure-to-

accommodate claims. A plaintiff makes a disparate-treatment claim when she alleges that

the defendant intentionally treated her differently because of her disability. See Davidson

v. Am. Online, Inc., 337 F.3d 1179, 1188 (10th Cir. 2003). A failure-to-accommodate

claim, by contrast, pertains to discrimination that stems from a “failure to provide

reasonable accommodations for a disability.” Punt, 862 F.3d at 1048. To distinguish

between disparate-treatment and failure-to-accommodate claims, we look to “all of the

circumstances,” id. at 1050, with a focus on “the allegations in the plaintiff’s complaint,”

id. at 1049.

       Ms. Sorenson never specifies in her amended complaint—the operative one

here—which type of discrimination claim she levies against the School District. Indeed,

Ms. Sorenson arguably conflates the two kinds of claims, averring that the School District


                                             10
“intentionally discriminated against [her] by failing to . . . reasonably accommodate her

disability.” Aplt.’s App., Vol. I, at 38 (Am. Compl., filed Nov. 17, 2014). The arguments

of her opening brief appear to do likewise. See Aplt.’s Opening Br. at 27 (citing the

standards for both disparate-treatment and failure-to-accommodate claims and arguing the

“abuse and mistreatment” that Ms. Sorenson suffered at the hands of the School District

did not amount to making a reasonable accommodation).

       The district court clearly seemed to think that Ms. Sorenson was pursuing a

failure-to-accommodate claim and found that she failed to demonstrate a genuine dispute

of material fact regarding the denial of a reasonable accommodation. Insofar as Ms.

Sorenson’s appellate briefing may be read to object to that ruling, we need not pause long

and can uphold in summary fashion the court’s determination. That is because Ms.

Sorenson fails to specify any accommodations that the School District unreasonably

refused to grant to her. Indeed, the only accommodations that Ms. Sorenson does

mention in her briefing are those that the School District granted her. See, e.g., Aplt.’s

Reply Br. at 1 (noting that the School District “offered [Ms. Sorenson] to have her place

of work moved to a private office at the high school to accommodate her need for a less

stressful and a more conducive work environment for her Computer System Analyst . . .

duties”). Therefore, we summarily reject any challenge by Ms. Sorenson to the district

court’s resolution of her ostensible failure-to-accommodate claim.

       It is less clear that, in entering summary judgment against Ms. Sorenson, the


                                             11
district court perceived her as also putting forth a disparate-treatment theory. Ms.

Sorenson’s briefing on appeal tacitly suggests that the court did identify and rule on this

theory of discrimination, as she cites in part disparate-treatment cases and contends that

the School District subjected her to “abuse and mistreatment” by causing her to suffer the

same three allegedly adverse actions that Ms. Sorenson put before the district court. See

Aplt.’s Opening Br. at 27. In this regard, recall that Ms. Sorenson alleged that the School

District discriminated against her because of her disability (multiple sclerosis) by (1)

demoting her from computer specialist to guidance clerk in 2008, and then from full-time

to part-time guidance clerk in 2010; (2) changing her job title (and pay) from computer

specialist to guidance clerk while still expecting her to do the work of a computer

specialist; and (3) wrongfully firing her in 2013.

       Even accepting for purposes of resolving this appeal that Ms. Sorenson’s

interpretation of the scope of the district court’s judgment is correct—i.e., that it

encompassed a purported disparate-treatment claim—that fact does not avail Ms.

Sorenson. That is because we conclude that the district court’s judgment rests on a solid

legal foundation.

       For any of Ms. Sorenson’s allegations of intentional discriminatory conduct to

escape summary judgment, she must satisfy the test set out in McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973), because Ms. Sorenson offers no direct evidence of

discrimination. As relevant to the ADA, to make a prima facie showing of discrimination


                                              12
under this test, a plaintiff must show that: (1) she is disabled under the ADA, (2) she is

qualified—with or without accommodation—to perform the “essential functions of the

job held or desired,” and (3) she was “discriminated against because of [her] disability.”

Kilcrease v. Domenico Transp. Co., 828 F.3d 1214, 1218–19 (10th Cir. 2016) (quoting

Davidson, 337 F.3d at 1188); accord Hawkins v. Schwan’s Home Serv., Inc., 778 F.3d

877, 883 (10th Cir. 2015).

       The third part of the prima facie burden “focuses on whether the circumstances

surrounding the adverse employment action ‘give rise to an inference that the [action] was

based on [the plaintiff’s] disability.’” Lincoln, 900 F.3d at 1192–93 (alterations in

original) (quoting Smothers v. Solvay Chems., Inc., 740 F.3d 530, 544 (10th Cir. 2014)).

In other words, without “some affirmative evidence that disability was a determining

factor in the employer’s decision,” a disparate-treatment claim fails. Id. at 1193 (quoting

Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)). We conclude that Ms.

Sorenson has failed to identify such affirmative evidence. As a result, she cannot

demonstrate a genuine dispute of material fact regarding this third part. Therefore, we

will not disturb the district court’s judgment regarding Ms. Sorenson’s purported

disparate-treatment claim.

       Specifically, Ms. Sorenson’s briefing and the record lack even a hint that the

School District took any of the three adverse actions that she identifies because of her

disability—that is, there is no evidence that her disability was a determining factor in the


                                             13
School District’s actions. For instance, even assuming arguendo that the School District

fired Ms. Sorenson, she never claims—and there is no evidence to indicate—that it did so

because of her disability, as opposed to because she told the School District that she could

not and would not work anymore. Similarly, even if Ms. Sorenson did the work of a

computer specialist at a guidance clerk’s pay, the record cannot support an inference that

her disability had anything to do with this arrangement. At most, she posits that the

School District took “advantage of the progression of her [multiple sclerosis]” by

demoting her without changing her duties. Aplt.’s App., Vol. I, at 32. But Ms. Sorenson

lacks any evidence to back up this conclusory statement. And, fatally for her cause, she

does not even try to support the statement in her appellate briefing.

       As for the 2008 job change and 2010 move to part-time work, she does not allege

that the School District took these ostensibly adverse actions against her because of her

disability. To the contrary, Ms. Sorenson herself admitted that, because of her

deteriorating health, she wanted the job change to guidance clerk because it promised

“less stress” and it gave her an opportunity to avoid feeling like “the weakest link.” Id. at

96 (Excerpts of Sorenson Dep., dated Dec. 8, 2015). And, regarding her move to part-

time status, Ms. Sorenson acknowledges that her husband had first raised the idea with

the School District and that she was free to decline the move but agreed to it because she

“knew” that her “health needed” her “to do it.” Id. at 92.

       In sum, even if the School District did what Ms. Sorenson alleges it did, she


                                             14
presents no “affirmative evidence that disability was a determining factor” in the School

District’s actions. Lincoln, 900 F.3d at 1193 (quoting Morgan, 108 F.3d at 1323). Thus,

she cannot make a prima facie showing of discrimination, and the district court correctly

entered summary judgment against Ms. Sorenson on her purported disparate-treatment

claim.

                                              2

         The district court was also right to enter summary judgment for the School District

on Ms. Sorenson’s retaliation claim. The ADA prohibits employers from retaliating

against employees for engaging in a protected activity. See 42 U.S.C. § 12203(a). To

prevail on an ADA retaliation claim, a plaintiff must make a prima facie showing of

retaliation. See Foster v. Mountain Coal Co., 830 F.3d 1178, 1186–87 (10th Cir. 2016).

This prima facie showing has three parts: the plaintiff must show that (1) she “engaged in

a protected activity”; (2) she “was ‘subjected to [an] adverse employment action’” after or

during “‘the protected activity’; and (3) there was ‘a causal connection between the

protected activity and the adverse employment action.’” Id. (alteration in original)

(quoting Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir. 1999)).

         Ms. Sorenson cannot make this prima facie showing of retaliation. For starters, it

is unclear what “protected activity” Ms. Sorenson claims to have engaged in. In the

section of her amended complaint describing her retaliation claim, Ms. Sorenson alleged

that the School District “intentionally discriminated against [her] after she notified them


                                              15
of her disability and requested accommodation.” Aplt.’s App., Vol. I, at 38. Yet, she

failed in her amended complaint to further specify the nature of the protected activity,

including what requested accommodations prompted the retaliation; doing so might have

(among other things) provided at least an arguable foundation for the court to reasonably

infer a causal connection between the alleged protected activity and the adverse

employment action. Standing alone, these deficiencies grievously (if not fatally) undercut

Ms. Sorenson’s efforts to survive summary judgment on her retaliation claim. Not

surprisingly, after surveying the record, the district court found that Ms. “Sorenson did

not engage in protected [activity].” Aplt.’s App., Vol. II, at 46 (Order Granting Def.’s

Mot., filed Jan. 24, 2018). But, even if there were substance to the retaliation theory that

Ms. Sorenson advanced before the district court, Ms. Sorenson could not avail herself of

it here because she effectively abandoned this theory in her opening brief by not making

arguments pertaining to it. See, e.g., Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir.

2007) (“[W]e routinely have declined to consider arguments that are not raised, or are

inadequately presented, in an appellant’s opening brief.”).

       Instead, in her appellate briefing, Ms. Sorenson posits that the School District

retaliated against her “when she began filing for long term disability” benefits. Aplt.’s

Opening Br. at 28. But Ms. Sorenson did not make this argument before the district court

and therefore she forfeited it, and, because she does not argue for plain-error review

before us, she has effectively waived it. See, e.g., Havens v. Colo. Dep’t of Corr., 897


                                             16
F.3d 1250, 1253, 1259 (10th Cir. 2018).

       But even assuming that we consider Ms. Sorenson’s late-blooming allegation of

protected activity, she still cannot show the requisite “causal connection between the

protected activity and the adverse employment action.” Foster, 830 F.3d at 1187 (quoting

Anderson, 181 F.3d at 1178). The “adverse employment action” that Ms. Sorenson

complains of on appeal seems to be (1) that the School District “locked her out of all of

her computer access” after the February 2013 meeting and (2) then fired her in June.

Aplt.’s Opening Br. at 28–29. Insofar as these events occurred at all, the record belies

any inference that they were connected to Ms. Sorenson’s pursuit of long-term disability

benefits. For instance, Ms. Sorenson admitted that the School District did not tell her not

to come back to work after the February meeting, and there is no evidence that they

locked her out of all computer access after this meeting. Furthermore, Ms. Sorenson’s

own self-interest would have led her not to come back to work after filing for long-term

disability because a condition precedent for applying for such benefits is an inability to

work. And there is no evidence giving rise to an inference that the School District fired

her for filing for such benefits.

       Simply put, for purposes of her retaliation claim, Ms. Sorenson cannot link the

School District’s supposed adverse actions to her filing for disability benefits. The

district court therefore properly granted the School District’s motion for summary

judgment on this claim.


                                             17
                                          III

      For the foregoing reasons, we DENY Ms. Sorenson’s motion to supplement the

record, GRANT the School District’s motion to strike the supplemental appendix, and

AFFIRM the district court’s order entering summary judgment for the School District.



                                        ENTERED FOR THE COURT



                                        Jerome A. Holmes
                                        Circuit Judge




                                          18
