                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                   November 6, 2013
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                       Clerk of Court
                                  TENTH CIRCUIT


 DOUGLAS J. DINSE,

              Plaintiff - Appellant,

 v.                                                       No. 12-6178
                                                  (D.C. No. 5:11-CV-00905-HE)
 CARLISLE FOODSERVICE                                     (W.D. Okla.)
 PRODUCTS INCORPORATED,

              Defendant - Appellee.


                            ORDER AND JUDGMENT *


Before TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges.



      Plaintiff-Appellant Douglas Dinse filed suit against his former employer

Defendant-Appellee Carlisle Foodservice Products, Inc. (“Carlisle”), alleging that

Carlisle failed to provide him a reasonable accommodation for his disability in

violation of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C.

§§ 12101–12213. The district granted summary judgment to Carlisle because

there was no evidence that Mr. Dinse requested a reasonable accommodation from



      *
               This order and judgment is not binding precedent, except under the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.
Carlisle, which is a prerequisite to Carlisle having a legal duty to provide one.

Mr. Dinse appeals from the district court’s decision, arguing that there are factual

disputes regarding whether he adequately requested a reasonable accommodation

that preclude a grant of summary judgment. For the reasons that follow, we

affirm the district court’s decision.

                                            I

                                            A

      Mr. Dinse was hired by Carlisle as a project engineer in September 2008. 1

As a project engineer, Mr. Dinse was required to perform numerous tasks,

including the timely drafting of Engineering Change Notices and the completion

of weekly “spec assignments.” Throughout his employment with Carlisle, Mr.

Dinse’s two supervisors were Greg Davis, his immediate supervisor, and Martin

Benning, the Director of Engineering.

      During this time, Mr. Dinse suffered from several maladies, including

diabetes, a heart condition, spinal issues, and avascular necrosis, which is a

degenerative hip condition. According to Mr. Dinse, Messrs. Davis and Benning

were “aware” of his health issues as early as December 2008, and “it was visually

obvious to . . . [them both] that [he] was in severe pain.” Aplt. App. at 62 (Aff.



      1
                Because we are reviewing the grant of summary judgment, we recite the
facts in the light most favorable to the non-movant, Mr. Dinse. See Gonzales v. City of
Albuquerque, 701 F.3d 1267, 1271 (10th Cir. 2012).

                                            2
of Douglas Dinse, dated May 1, 2012). Carlisle’s awareness of these conditions,

says Mr. Dinse, also stemmed from his regular need for sick leave to attend

doctor appointments and physical therapy and because his avascular necrosis

required him to walk with a cane.

      Mr. Dinse’s work performance was satisfactory through March 2009. Not

long thereafter, however, Mr. Dinse’s health issues began to affect his job

performance, despite his efforts to stay current on his work by working late and

on the weekends. According to Mr. Dinse, his disability, the pain it caused, and

the various pain medications he was prescribed made it difficult to focus and

made him extremely tired. He acknowledged that this mental fatigue prevented

him from timely completing his work assignments.

      In June 2009, Mr. Davis provided Mr. Dinse with a written notice that

detailed Carlisle’s concerns with Mr. Dinse’s work performance, including the

fact that he was eleven weeks behind on his spec assignments. The notice

indicated that Mr. Dinse needed to, among other things, catch up on his

assignments and that he could be terminated if his work did not significantly

improve.

      Mr. Davis met with Mr. Dinse in July 2009 to discuss his work

performance. Mr. Dinse was informed that, although his performance had

somewhat improved, his productivity still needed improvement because he was

seventeen weeks behind on his spec assignments and had not made any progress

                                         3
toward catching up. Mr. Davis had a third and final meeting with Mr. Dinse, in

August 2009, at which point Mr. Dinse was twenty weeks behind on his spec

assignments.

       A couple of days before Carlisle terminated Mr. Dinse’s employment, he

informed his supervisors that he was going to need to undergo surgery. 2 Because

Mr. Dinse would need to recover from this surgery at home, he discussed with

Messrs. Davis and Benning the possibility of Carlisle providing him with a laptop

during the post-surgery recovery period, so that he could begin working sooner

than otherwise would be possible. As events unfolded, however, the occasion

never arose for Carlisle to provide a laptop to Mr. Dinse. Specifically, on August

21, 2009, prior to the surgery, Carlisle terminated Mr. Dinse.

       Following his termination, Mr. Dinse was awarded unemployment benefits

by the Oklahoma Employment Securities Commission (“OESC”) after it

determined that he was not discharged for misconduct. Mr. Dinse also filed a

complaint with the Equal Employment Opportunity Commission (“EEOC”), and it

determined that Carlisle had violated the ADA by not providing Mr. Dinse with a

reasonable accommodation for his disability.




       2
              Although the parties dispute whether Carlisle made the decision to
terminate Mr. Dinse before or after he notified Carlisle that he would need to undergo
surgery, the sequence of these events has no bearing on our ultimate resolution of this
appeal.

                                             4
                                            B

       Mr. Dinse filed suit against Carlisle alleging that it discriminated against

him in violation of the ADA by failing to provide him with a reasonable

accommodation that would allow him to adequately perform the essential

functions of his job. Carlisle moved for, and the district court granted, summary

judgment on Mr. Dinse’s reasonable-accommodation claim.

       Certain aspects of Mr. Dinse’s claim were undisputed. First, Carlisle did

not contest that Mr. Dinse was “disabled” as defined by the ADA. 3 Second, Mr.

Dinse did “not contest that he was unable to comply with his project deadlines

absent an accommodation, or that doing so was an essential function of his job.”

Aplt. App. at 134 (Dist. Ct. Order, dated June 14, 2012).

       The district court began by addressing the two accommodations Mr. Dinse

suggested that Carlisle should have provided him: a laptop computer and a

modified work schedule. According to Mr. Dinse, these accommodations should

have been provided because Carlisle was clearly aware of his disability. But the

district court, relying on EEOC v. C.R. England, Inc., 644 F.3d 1028, 1049 (10th



       3
              “A person is ‘disabled’ under the ADA if he has ‘a physical or mental
impairment that substantially limits one or more major life activities.’” Carter v.
Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1142 (10th Cir. 2011) (quoting 42 U.S.C.
§ 12102(1)(A)). Carlisle has not contested that Mr. Dinse’s various health conditions
meet this definition. Therefore, for the purposes of this appeal, we accept that Mr. Dinse
was disabled as defined by the ADA and refer to his “disability” as encompassing all of
his various health conditions.

                                            5
Cir. 2011), concluded that mere awareness of Mr. Dinse’s disability was

insufficient to trigger Carlisle’s duty to provide him a reasonable accommodation.

Instead, Mr. Dinse was required to make an adequate request for these

accommodations before Carlisle had a legal obligation to work with Mr. Dinse to

provide them.

      Evidence that Mr. Dinse discussed a laptop accommodation with Messrs.

Davis and Benning was insufficient, reasoned the district court, because Mr.

Dinse’s deposition testimony clarified that “this conversation . . . was in the

context of working from home after his proposed surgery so [he] could return to

work sooner—not beforehand so that he could keep up.” Aplt. App. at 136.

Because Mr. Dinse failed to point to “any statements or conversations with . . .

anyone . . . at Carlisle[] which could be construed as requesting present help for

his disability,” id. at 135, the district court reasoned that there was no evidence

that he “requested an accommodation from Carlisle which would have enabled

him to perform his essential job functions,” id. at 136. Thus, concluded the

district court, Mr. Dinse was not a “qualified individual” under the ADA, which

entitled Carlisle to summary judgment.

      This appeal followed.

                                          II

                                          A

      “We review a district court’s grant of summary judgment de novo, applying

                                          6
the same standard as the district court.” Helm v. Kansas, 656 F.3d 1277, 1284

(10th Cir. 2011). Summary judgment is appropriate “if the movant shows that

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). “We view the summary

judgment evidence in the light most favorable to the non-movant, applying the

same standard as the district court . . . .” Gonzales, 701 F.3d at 1271 (omission in

original) (quoting Bertsch v. Overstock.com, 684 F.3d 1023, 1028 (10th Cir.

2012)) (internal quotation marks omitted).

                                           B

                                           1

      The ADA prohibits a covered employer from “discriminat[ing] against a

qualified individual on the basis of disability in regard to . . . discharge of

employees . . . [or] other terms, conditions, and privileges of employment.” 42

U.S.C. § 12112(a). Actionable discrimination under the ADA takes many forms,

one of which is when an employer fails to provide a disabled employee a

reasonable accommodation. See id. § 12112(b)(5)(A); see also C.R. England, 644

F.3d at 1048 (“The [ADA] . . . establishes a cause of action for disabled

employees whose employers fail to reasonably accommodate them.” (quoting

Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1261 (10th Cir. 2001)) (internal

quotation marks omitted)); Davidson v. AOL, 337 F.3d 1179, 1188–89 (10th Cir.

2003) (“[A] separate claim of discrimination can be stated under the ADA for


                                           7
failing to provide a reasonable accommodation.”).

      The ADA defines “reasonable accommodation” to “include”

             (A) making existing facilities used by employees readily
             accessible to and usable by individuals with disabilities; and

             (B) job restructuring, part-time or modified work schedules,
             reassignment to a vacant position, acquisition or modification of
             equipment or devices, appropriate adjustment or modifications of
             examinations, training materials or policies, the provision of
             qualified readers or interpreters, and other similar
             accommodations for individuals with disabilities.

42 U.S.C. § 12111(9); accord 29 C.F.R. § 1630.2(o).

      Under the ADA, a prima facie case of disability discrimination requires a

plaintiff to demonstrate that he (1) is disabled as defined by the ADA; “(2) is

qualified, with or without reasonable accommodation, to perform the essential

functions of the job held or desired; and (3) suffered discrimination by an

employer or prospective employer because of that disability.” EEOC v. Picture

People, Inc., 684 F.3d 981, 985 (10th Cir. 2012); see C.R. England, 644 F.3d at

1037–38.

      The district court decided the case on the second element of the prima facie

case. See, e.g., Aplt. App. at 134 n.8 (“For simplicity, the court has focused its

discussion on the threshold matter of whether plaintiff has presented evidence that

he was qualified to perform the essential functions of his job, with or without a

reasonable accommodation.”); id. at 137 (“Plaintiff has not created a triable issue

as to whether he was a ‘qualified person’ under the ADA. As a result, plaintiff


                                          8
cannot prevail on his disability discrimination claim.”). We elect to do the same.

                                           2

      Regarding the second element, it is notable that “before an individual can

be deemed not ‘otherwise qualified’ [that is, not qualified] the employer must

make an effort to accommodate the employee’s disability.” Wilkerson v. Shinseki,

606 F.3d 1256, 1265 (10th Cir. 2010) (emphasis added); see Koessel v. Sublette

Cnty. Sheriff’s Dep’t, 717 F.3d 736, 744 (10th Cir. 2013) (“While we agree with

the district court that [plaintiff] did not establish he could perform the essential

functions of a patrol officer, we must still consider whether the [employer] made

an effort to reasonably accommodate him.”). See generally 42 U.S.C.

§ 12112(b)(5)(A) (specifying as a form of employer disability discrimination “not

making reasonable accommodations to the known physical or mental limitations

of an otherwise qualified individual with a disability” (emphasis added)). “To

facilitate the reasonable accommodation, ‘[t]he federal regulations implementing

the ADA envision an interactive process that requires participation by both

parties.’” C.R. England, 644 F.3d at 1049 (alteration in original) (emphasis

added) (quoting Bartee v. Michelin N. Am., Inc., 374 F.3d 906, 916 (10th Cir.

2004)); cf. 29 C.F.R. § 1630.2(o)(3) (“To determine the appropriate reasonable

accommodation it may be necessary for the covered entity to initiate an informal,

interactive process with the individual with a disability in need of the

accommodation.”).


                                           9
      “[A]s a precondition to suit, employees have the burden to request

accommodation unless the employer has ‘foreclosed the interactive process

through its policies or explicit actions . . . .’” Koessel, 717 F.3d at 744 (omission

in original) (quoting Davoll v. Webb, 194 F.3d 1116, 1133 (10th Cir. 1999)). In

fact, “before 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.” C.R. England, 644 F.3d at 1049; see Smith v. Midland Brake, Inc., 180

F.3d 1154, 1171 (10th Cir. 1999) (en banc) (“In general, the interactive process

must ordinarily begin with the employee providing notice to the employer of the

employee’s disability and any resulting limitations . . . .”). “Although the notice

or request ‘does not have to be in writing, be made by the employee, or formally

invoke the magic words ‘reasonable accommodation,’ it ‘nonetheless must make

clear that the employee wants assistance for his or her disability.’” C.R. England,

644 F.3d at 1049 (quoting Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313

(3d Cir. 1999)).

      In this case, it is true that Carlisle never engaged Mr. Dinse in an

interactive process nor provided him with a reasonable accommodation. But we

conclude based on the undisputed evidence that Mr. Dinse never asked Carlisle

for an accommodation. Like the district court, we believe that this conclusion

seals Mr. Dinse’s fate because Mr. Dinse does not dispute that he could not


                                          10
perform at least one essential function of his job (i.e., meeting project deadlines)

without an accommodation. In other words, in effect, Mr. Dinse acknowledged

that, without an accommodation, he was not qualified to hold his job. And, by

virtue of his silence, Carlisle was under no legal obligation to provide him with

an accommodation.

      Mr. Dinse’s primary argument is that Carlisle’s awareness of his disability

was sufficient to place Carlisle on notice that he needed an accommodation,

thereby triggering Carlisle’s duty under the ADA to engage in the interactive

process. This argument is unavailing. More is required to trigger an employer’s

duty to engage in the interactive process than mere awareness that the employee

is disabled; specifically, the employee must make an adequate request for a

reasonable accommodation for the disability. Cf. id. at 1032, 1049–50 (holding

that the plaintiff did not make an adequate request for an accommodation even

though his employer was aware of his disability).

      Certainly, an employer may inquire whether an employee needs an

accommodation before an employee has made an adequate request, but an

employer is under no legal obligation to do so absent such an employee request.

See 29 C.F.R. Pt. 1630, App. § 1630.9 (stating that “an employer may inquire

whether the employee is in need of a reasonable accommodation,” but that “it is

the responsibility of the individual with a disability to inform the employer that

an accommodation is needed” (emphasis added)). In other words, it is the request


                                          11
for an accommodation for an employee’s disability that triggers an employer’s

duty to engage in the interactive process, not an awareness of a disability that

may (or may not) necessitate an accommodation. See C.R. England, 644 F.3d at

1049 (“The request for accommodation must be sufficiently direct and specific,

giving notice that [the employee] needs a special accommodation.” (emphasis

added) (quoting Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 23 (1st Cir.

2004)) (internal quotation marks omitted)); Tobin v. Liberty Mut. Ins. Co., 553

F.3d 121, 129 (1st Cir. 2009) (“An employer’s duty to accommodate an

employee’s disability is ordinarily activated by a request from the employee, and

the request must be sufficiently direct and specific to give the employer notice of

the needed accommodation.” (emphasis added) (citations omitted) (internal

quotation marks omitted)); Woodman v. Runyon, 132 F.3d 1330, 1345 (10th Cir.

1997) (“The ‘employee’s initial request for an accommodation . . . triggers the

employer’s obligation to participate in the interactive process.’” (omission in

original) (emphasis added) (quoting Taylor v. Principal Fin. Grp., Inc., 93 F.3d

155, 165 (5th Cir. 1996))).

      There is no doubt that Carlisle knew of Mr. Dinse’s significant health

issues, which Carlisle does not dispute constituted a disability: he walked with a

cane, was visibly in pain at work, and frequently requested leave to see several

physicians and to attend physical therapy. However, “[i]t is not the employer’s

responsibility to anticipate the employee’s needs and affirmatively offer


                                         12
accommodation if the employer is otherwise open to such requests,” Koessel, 717

F.3d at 745; yet, this is precisely the burden Mr. Dinse asks us to impose on

Carlisle. This we will not do. 4

       Mr. Dinse alternatively argues that the record supports the view that he

made the kind of specific accommodation request mandated by the ADA, when he

asked Carlisle for a laptop that would have allowed him to work from home while

he recovered from his upcoming surgery. 5 The district court concluded that this


       4
                The assignment of the initial burden in the reasonable-accommodation,
interactive process to the employee makes eminent sense when one considers that poor
work performance “ha[s] many causes.” Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 934
(7th Cir. 1995). It can be hard for an employer to know whether an employee’s
difficulties in performing his or her job are caused by a disability or some other factor,
and “[t]he ADA does not require clairvoyance.” Id. Thus, it is logical and not surprising
that the law would place the duty to act on the party with the most information regarding
the disability and the limitations it causes—namely, the employee. See Loulseged v. Akzo
Nobel, Inc., 178 F.3d 731, 735 n.4 (5th Cir. 1999) (“Employers cannot be expected to
anticipate all the problems that a disability may create on the job and spontaneously
accommodate them.”); Mole v. Buckhorn Rubber Prods., 165 F.3d 1212, 1218 (8th Cir.
1999) (“Only [the plaintiff] could accurately identify the need for accommodations
specific to her job and workplace. [She] cannot ‘expect the employer to read [her] mind
and know [she] secretly wanted a particular accommodation and [then] sue the employer
for not providing it.’” (third, fourth, and fifth alterations in original) (quoting Ferry v.
Roosevelt Bank, 883 F. Supp. 435, 441 (E.D. Mo. 1995))).
       5
               Mr. Dinse also contends that he made a second specific request when he
“told [Carlisle’s] benefits coordinator [in] December, 2008 that his medical condition was
deteriorating and inquired about any program that would allow him accommodation in the
form of leave because his sick leave was used up and he was using vacation leave.” Aplt.
Opening Br. at 19; see id. at 24 (making a similar assertion). The sum total of Mr.
Dinse’s argument on this score, however, is two assertions unadorned with citations to the
record or legal authorities. This is insufficient to require our consideration of this
argument, and thus we deem it waived. See Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 841 (10th Cir. 2005) (deeming several issues waived when the support for
                                                                                (continued...)

                                             13
request did not constitute a request for a reasonable accommodation for his

disability, reasoning that Mr. Dinse’s deposition testimony makes clear that his

laptop request was “in the context of working from home after [a] proposed

surgery so [he] could return to work sooner—not beforehand so that he could

keep up.” Aplt. App. at 136. Mr. Dinse does not dispute the district court’s

reading of his deposition testimony on appeal; he merely reasserts that he

requested the reasonable accommodation of a laptop. The failure to challenge the

district court’s reasoning allows us to accept the court’s conclusion as

unchallenged on appeal. See Reedy v. Werholtz, 660 F.3d 1270, 1275 (10th Cir.

2011) (declining to consider an argument that “d[id] not challenge the [district]

court’s reasoning” in rejecting that argument).

       We need not, however, rest our decision on this failure to challenge alone,

       5
        (...continued)
each consisted of “mere conclusory allegations with no citations to the record or any legal
authority for support”); Wilburn v. Mid-South Health Dev., Inc., 343 F.3d 1274, 1281
(10th Cir. 2003) (“We . . . will not consider issues that are raised on appeal but not
adequately addressed.”). The Federal Rules of Appellate Procedure make clear that the
“argument” portion of the appellant’s opening brief “must contain” the appellant’s
“contentions and the reasons for them, with citations to the authorities and parts of the
record on which the appellant relies.” Fed. R. App. P. 28(a)(9)(A). Mr. Dinse’s failure to
comply with this requirement effectively leaves us to forage through the record for his
alleged request and—in the event that we should find it—would place us in the
inappropriate role of advocate, that is, with the responsibility for constructing a legal
argument for why this request was sufficient to trigger Carlisle’s duty to engage in the
interactive process. This is Mr. Dinse’s responsibility, however, and one we will not bear
for him. See United States v. Rodriguez-Aguirre, 108 F.3d 1228, 1237 n.8 (10th Cir.
1997) (“[I]t is the appellant’s responsibility to tie the salient facts, supported by specific
record citation, to [his] legal contentions.” (second alteration in original) (citation
omitted) (internal quotation marks omitted)).

                                             14
as the evidence confirms that the district court’s analysis is correct. In his

affidavit, Mr. Dinse stated that he “discussed” with Messrs. Davis and Benning

“an accommodation—working from home using a laptop computer.” Aplt. App.

at 62. But Mr. Dinse’s deposition testimony makes clear that his laptop request

was not related to his disability and how it affected his day-to-day work

performance:

             Q. [W]ho did you have a discussion with about getting a laptop
             computer for your use?

             A. With both [Messrs. Davis and Benning].

                    ....

             Q. You had had a discussion with [Messrs. Davis and Benning]
             about working from home after you had to have your surgery;
             right?

             A. Yes.

                    ....

             Q. And you say here that [the requested] laptop [n]ever came.
             Instead, you were terminated. And you were terminated before
             you had your surgery; right?

             A. Yes.

             Q. So there wouldn’t have been a reason for you to have a laptop
             at home before your termination; correct?

             A. That’s correct.

Id. at 88–89, 91 (Dep. of Douglas Dinse, taken Mar. 8, 2012) (emphases added).

      Mr. Dinse’s deposition testimony demonstrates that he requested a laptop


                                          15
only so that he could work from home while recovering from surgery. Such an

accommodation was not intended in any way to be connected to his alleged

disability or, more specifically, sought as a means to overcome the day-to-day

difficulties that this disability created. In other words, Mr. Dinse sought the

laptop as a way to return to work more quickly, not as a means to assist him with

the mental fatigue that his disability allegedly caused, which made it difficult for

him to focus and timely complete his assignments.

      Thus, Mr. Dinse’s laptop request was a far cry from a “sufficiently direct

and specific” request for an accommodation that would put Carlisle on notice that

Mr. Dinse “want[ed] assistance for his . . . disability.” C.R. England, 644 F.3d at

1049 (citations omitted) (internal quotation marks omitted). And it certainly did

not “link[]” the laptop request to Mr. Dinse’s disability in the manner that is

required to trigger the interactive process. See Jones v. Nationwide Life Ins. Co.,

696 F.3d 78, 89 (1st Cir. 2012). To the contrary, Mr. Dinse made clear that the

laptop request was entirely unrelated to the difficulties his disability created. See

Aplt. App. at 91 (agreeing that there “wouldn’t have been a reason for [him] to

have a laptop at home before [his] termination”). Thus, as with Carlisle’s general

awareness of Mr. Dinse’s disability, which we addressed above, Mr. Dinse’s

request for a laptop did not put Carlisle “on notice” that he needed a reasonable

accommodation “for his . . . disability.” C.R. England, 644 F.3d at 1049 (citation

omitted) (internal quotations marks omitted).


                                          16
       In sum, it was Mr. Dinse’s obligation to put Carlisle on notice that his

disability was affecting his performance and, more to the point, that he desired an

accommodation “for his . . . disability.” Id. (citation omitted) (internal quotation

marks omitted). By doing so, Mr. Dinse would have triggered Carlisle’s

obligation to engage in the interactive process with the aim of providing him a

reasonable accommodation that would render him qualified to perform the

essential functions of his job. Yet, the record is clear that Mr. Dinse failed to

provide Carlisle with legally adequate notice of his desire for an accommodation.

As a consequence, Carlisle had no legal duty to attempt to provide Mr. Dinse a

reasonable accommodation. And, as Mr. Dinse acknowledges, he was not

qualified—without an accommodation—to perform his job. Accordingly, Mr.

Dinse cannot carry his burden of establishing the second element of a prima facie

ADA claim—viz., that he was qualified, with or without reasonable

accommodation, to perform the essential functions of his job. The district court

therefore correctly concluded that Carlisle was entitled to summary judgment. 6

       6
               Mr. Dinse contends that the district court erred in not considering, as
evidence in support of his claim, the EEOC’s determination that Carlisle discriminated
against him based on his disability in violation of the ADA. But “when the independent
facts before the district court judge fail to establish a genuine issue of material fact, a
favorable EEOC . . . determination does not create one.” Simms v. Okla. ex rel. Dep’t of
Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1331 (10th Cir. 1999); see also
Septimus v. Univ. of Hous., 399 F.3d 601, 610 (5th Cir. 2005) (holding that an EEOC
“reasonable cause” determination letter did not constitute evidence precluding summary
judgment when the other evidence was insufficient to create a genuine issue of material
fact).
                                                                                 (continued...)

                                              17
                                       III

      For the reasons stated, we AFFIRM the district court’s order granting

summary judgment to Carlisle on Mr. Dinse’s ADA claim.



                                               Entered for the Court




                                               JEROME A. HOLMES
                                               Circuit Judge




      6
          (...continued)

       Relatedly, Mr. Dinse’s reliance on the OESC’s determination that he was not
terminated for “misconduct” fails to advance his reasonable-accommodation claim.
Assuming arguendo that such a finding is admissible evidence, whether or not Mr. Dinse
was terminated for misconduct is irrelevant to the issue of whether he adequately
requested a reasonable accommodation. Cf. Dillman v. Winchester, 639 F. Supp. 2d
1257, 1268 (W.D. Okla. 2009) (concluding that an OESC determination was irrelevant
because “[t]he issues before this Court are not whether Coleman was ultimately
determined to be eligible for unemployment compensation or whether he engaged in
misconduct as defined by the OESC”).

                                          18
