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

                             FOR THE TENTH CIRCUIT                           July 8, 2020
                         _________________________________
                                                                       Christopher M. Wolpert
                                                                           Clerk of Court
 WILLIAM MANNA,

       Plaintiff - Appellant,

 v.                                                         No. 19-5064
                                               (D.C. No. 4:16-CV-00500-TCK-FHM)
 PHILLIPS 66 COMPANY, a foreign                             (N.D. Okla.)
 company; PHILLIPS 66 SEVERANCE
 PAY PLAN,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, McHUGH, and MORITZ, Circuit Judges.
                  _________________________________

      Plaintiff William Manna sued defendants Phillips 66 Company (Phillips 66)

and Phillips 66 Severance Pay Plan (the Plan), alleging they violated the Employee

Retirement Income Security Act (ERISA) of 1974, 29 U.S.C. §§ 1001–1461, the

Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. §§ 12101–12213, and

Oklahoma drug-testing law when they terminated him and denied him severance

benefits. The district court granted summary judgment for Phillips 66 and the Plan.

For the reasons discussed below, we affirm.



      *
        This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
                                     Background

      Manna worked for Phillips 66 and its predecessors for about 18 years, most

recently in Bartlesville, Oklahoma. He was a salaried employee who could and

sometimes did work remotely. In September 2014, Rebecca Ginyovszky, who was

based in Houston, Texas, became Manna’s supervisor. Ginyovszky rated Manna’s

overall performance in 2014 as “below expectations” for, among other reasons,

failure to complete several projects on time. App. vol. 15, 972. In May 2015,

Ginyovszky disciplined Manna with a written warning for “routine late arrival to the

office.” App. vol. 10, 654. The warning directed Manna to “arriv[e] at the office no

later than 9:00 a.m.” and to advise Ginyovszky when he “would not be in the office

or not able to make the designated timeframe.” App. vol. 10, 654. Although Manna

testified that he complied with the warning, Ginyovszky testified that she continued

to receive reports from coworkers that he was arriving late.

      On July 14, 2015, Manna traveled to Houston for, among other reasons, his

midyear review with Ginyovszky. When he was not at the office by 9:30 a.m. the

following morning, Ginyovszky emailed to ask him where he was; Manna replied

that he was working in his hotel room and would come to the office later. When he

arrived in the office around noon or 1:00 p.m., Ginyovszky and others observed him

slurring his speech and having difficulty standing.

      In response, Ginyovszky authorized immediate drug and alcohol testing in

Houston, where a Phillips 66 doctor also observed the symptoms. Manna denied

these symptoms and said he was “his normal self without effect.” App. vol. 14, 855.

                                           2
Regardless, Phillips 66 placed him on short-term disability leave until he could

complete further health evaluations. The results of the drug test in Houston and of

subsequent tests all later came back negative. His personal doctor then cleared Manna

to return to work, and Ginyovszky said she was no longer concerned that he had a

substance-abuse or mental-health issue. When he returned from his short-term

disability leave about two weeks after the Houston trip, a human-resources employee

spoke to Manna and encouraged him to divulge any health or other issues he was

having. At all times, Manna denied that he ever had an impairment or disability.

Phillips 66 terminated his employment on August 6, 2015, citing his failure to

improve his performance in the areas outlined in the May 2015 warning.

      Manna subsequently applied for benefits under the Plan. The Plan is an ERISA

welfare plan whose purpose is, among other things, “to provide severance benefits

for [Phillips 66 employees] who are involuntarily laid off in circumstances defined

by the Plan.” App. vol. 2, 77. The Plan appoints both a plan administrator to make

benefit determinations and a benefits committee to review those decisions if the

claimant appeals. Both the plan administrator and the members of the benefits

committee are Phillips 66 officers or employees. Here, the plan administrator denied

Manna’s claim, and the benefits committee affirmed that decision.

      Manna sued. As relevant to this appeal, he alleged that Phillips 66 and the Plan

violated ERISA, the ADA, and Oklahoma state law. The district court granted

Phillips 66 summary judgment on the ADA and state-law claims, but it remanded the

ERISA claims to the Plan. The Plan again rejected Manna’s claim for benefits; the

                                          3
district court then granted summary judgment to the Plan on the ERISA claims.

Manna appeals both orders.1

                                        Analysis

      Manna appeals from the district court’s orders granting summary judgment to

the Plan on his claims for (1) severance benefits under ERISA and (2) attorney’s fees

under ERISA. He also appeals the district court’s decision granting summary

judgment to Phillips 66 on his claims that Phillips 66 (3) discriminated against him in

violation of the ADA and (4) violated Oklahoma drug-testing law. We address each

argument in turn.

I.    Severance Benefits Under ERISA

      Under the Plan’s terms, a Phillips 66 employee “is eligible to receive benefits

under th[e] Plan if he has all Qualifying Circumstances and does not have a

Disqualifying Circumstance.” Id. at 83–84. “Qualifying Circumstances” occur when

an employee with at least a year of service “has a Layoff” on or after May 2012. Id.

at 84. An employee “has a Layoff” if, as relevant here, Phillips 66 gave the employee

a written Notice of Layoff. A “Disqualifying Circumstance” includes, among other

things, when the employee “is terminated for cause, as indicated by the fact that his

or her termination is recorded in [Phillips 66’s] personnel system as a ‘discharge’ or




      1
         Even though Manna filed a notice of appeal that named only the district
court’s final judgment, that notice is jurisdictionally sufficient to support review of
both of the orders he seeks to appeal. See McBride v. CITGO Petroleum Corp., 281
F.3d 1099, 1104 (10th Cir. 2002).
                                            4
similar classification.” Id. And the Plan can consider an employee terminated for

cause even if the employee also received a Notice of Layoff.

      Following Manna’s termination, the plan administrator rejected his application

for benefits. Specifically, it concluded that Phillips 66 terminated him for cause

because documents in his employment file showed that Phillips 66 terminated him for

failing to improve on issues he had with communication, attendance, and delivering

on goals and projects. Further, he did not otherwise meet the requirements for a

layoff. Manna then filed an administrative appeal to the benefits committee. The

benefits committee denied his appeal for the same reasons the plan administrator

denied his application, and it further added that Manna could not be considered laid

off because he had not received a Notice of Layoff as required by the Plan. Manna

then sued in federal court. See 29 U.S.C. § 1132(a)(1)(B).

      Initially, the district court found the Plan’s determination—as reflected by

both the plan administrator’s and benefit committee’s written decisions—arbitrary

and capricious. Specifically, the district court found that the Plan’s decision lacked

evidentiary support for Manna’s alleged performance and attendance failures, and it

found that the Plan ignored contrary evidence. Further, the district court faulted the

Plan for requiring a Notice of Layoff when its reasoning was based on Manna being

terminated for cause. And it determined that the Plan’s reliance on such “formal

designations and actions entirely within the employer’s control” were not entitled to

deference. App. vol. 17, 1087. Accordingly, the district court remanded to the Plan

for further proceedings.

                                           5
      On remand, the Plan, acting through its benefits committee, again denied

Manna’s request for benefits. This time, the Plan disavowed any reliance on its own

prior factual determinations and instead focused on the written terms of the Plan

itself. The Plan explained that it could only award benefits if Phillips 66 provided

Manna a Notice of Layoff and if Manna had no Disqualifying Circumstances. And

Phillips 66 did not issue Manna a Notice of Layoff. Further, a termination-for-cause

notation in Manna’s employment file was a Disqualifying Circumstance. Thus,

“under the express terms of the Plan,” Manna was ineligible for benefits. App. vol. 6,

378. Manna again appealed that determination to the district court. This time, the

district court upheld the Plan’s determination, and it agreed that the determination

was supported by “the express terms of the Plan.” App. vol. 18, 1182.

      In the appeal now before us, Manna argues that (1) the district court erred in

its second order by applying the wrong standard of review to its consideration of the

Plan’s decision; (2) the Plan wrongly denied his claim; and (3) the district court

wrongly upheld the Plan’s decision.

      In its second decision reviewing the Plan’s benefits denial, the district court

used an arbitrary-and-capricious standard of review because the Plan relied only on

the Plan’s written terms when making its benefits decision. On appeal, Manna argues

that the district court should have afforded no deference to the Plan’s determinations

because the Plan had a conflict of interest with Phillips 66. Because the district court

based its decision only on the Plan’s written terms as opposed to disputed facts, we

review de novo the district court’s selection of the arbitrary-and-capricious standard

                                           6
to review the Plan’s decision to deny Manna benefits. Hodges v. Life Ins. Co. of N.

Am., 920 F.3d 669, 675 (10th Cir. 2019) (noting de novo review is appropriate where

district court’s order did not resolve disputed facts).

       Nevertheless, Manna argues that the district court should have given less

deference to the Plan than typically afforded on arbitrary-and-capricious review

because the Plan had a conflict of interest. Specifically, Manna contends, Phillips 66

“funds the Plan, appoints and compensates the Plan Administrator[,] and has access

to the value of the benefit claim.” Aplt. Br. 33. But although a conflict of interest

could be relevant, “[t]he importance . . . attach[ed] to the existence of a conflict of

interest is proportionate to the likelihood that the conflict affected the benefits

decision.” Graham v. Hartford Life & Acc. Ins. Co., 589 F.3d 1345, 1358 (10th Cir.

2009). And Manna makes no attempt to explain how this apparent conflict could have

“affected the benefits decision.” Id. Thus, Manna’s conflict-of-interest argument has

no bearing on whether the district court selected the correct standard of review. And,

as here, when a plan administrator has “discretionary authority to determine

eligibility for benefits or to construe the terms of the plan,” the district court should

apply a deferential standard of review to the Plan’s decision to determine “only

whether the denial of benefits was arbitrary and capricious.” Martinez v. Plumbers &

Pipefitters Nat’l Pension Plan, 795 F.3d 1211, 1214 (10th Cir. 2015) (first quoting

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); second quoting

Weber v. GE Grp. Life Assurance Co., 541 F.3d 1002, 1010 (10th Cir. 2008)).



                                             7
Because the district court did apply the arbitrary-and-capricious standard, we reject

Manna’ argument that the district court applied an incorrect standard.

      Manna argues that we, too, should give some lesser level of deference to the

Plan than typically afforded on arbitrary-and-capricious review. In support, he

invokes the same conflict-of-interest argument. But as explained above, Manna did

not explain how any conflicts could have affected the benefits decision. Accordingly,

we decline Manna’s request to afford no deference to the Plan’s determination.

      Instead, like the district court, we review the Plan’s determination under the

arbitrary-and-capricious standard. See id. In applying this standard, we will uphold

the Plan’s decision “so long as it was made on a reasoned basis and supported by

substantial evidence.” Van Steen v. Life Ins. Co. of N. Am., 878 F.3d 994, 997 (10th

Cir. 2018). Substantial evidence is “such evidence that a reasonable mind might

accept as adequate to support the conclusion reached by the decision[]maker.

Substantial evidence requires more than a scintilla but less than a preponderance.”

Graham, 589 F.3d at 1358 (quoting Sandoval v. Aetna Life & Cas. Ins. Co., 967 F.2d

377, 382 (10th Cir.1992)).

      Manna argues that the Plan did not give “a full[-]and[-]fair review” to his

claim as required by ERISA because the Plan selectively relied on only certain

evidence. Aplt. Br. 35 (quoting 29 U.S.C. § 1133(2)). Under ERISA, the Plan must

“afford a reasonable opportunity to any participant whose claim for benefits has been

denied for a full[-]and[-]fair review . . . of the decision denying the claim.”

§ 1133(2). And regulations implementing that statutory requirement further explain

                                            8
that such a review must “take[] into account all comments, documents, records, and

other information submitted by the claimant relating to the claim.” 29 C.F.R. §

2560.503-1(h)(2)(iv).

      But Manna directs this argument only at the initial benefits determination—the

determination that the district court rejected. And on remand from the district court’s

initial order, the Plan disclaimed any reliance on its initial determination and instead

based its denial of benefits solely on (1) Manna’s lack of Notice of Layoff and (2) the

termination-for-cause notation. The district court upheld this second determination,

which relied only on the Plan’s terms. Even if the Plan’s initial determination was not

based on a full-and-fair review, Manna does not explain how that error impacted the

district court’s review of the Plan’s second determination.2

      Moreover, to the extent that Manna argues that the Plan’s second

determination erroneously considered only limited evidence, the cases he cites do not

support his position. Those cases explain or suggest that a plan need only review

evidence that is relevant to the application of particular plan terms. See Farhner v.

United Transp. Union Discipline Income Prot. Program, 645 F.3d 338, 341, 343–44

(6th Cir. 2011) (explaining that plan terms precluding benefits to claimant discharged

for “insubordination” permitted plan both to review transcript of hearing held about

circumstances of claimant’s discharge and to decline to review medical records that


      2
        Nor does Manna suggest that the Plan’s disclaimer on remand of its prior
rationale is itself evidence that the Plan did not make its subsequent decision on a
“reasoned basis.” Van Steen, 878 F.3d at 997. We thus express no opinion on the
merits of such an argument.
                                            9
were irrelevant to that question); Al-Abbas v. Metro. Life Ins. Co., 52 F. Supp. 3d

288, 290, 294, 296–97 (D. Mass. 2014) (considering various medical records plan

consulted to determine whether claimant unable to perform job duties because of

“sickness or injury”). Here, the Plan’s terms required the Plan to determine only

whether Manna received a Notice of Layoff and whether his personnel filed

contained a termination-for-cause notation. The Plan was not required to consider

any other evidence to make that determination. See Farhner, 645 F.3d at 343-44.

Thus, the Plan based its second determination on a full-and-fair review. 3

      Finally, Manna criticizes the district court for “accept[ing] the Plan’s

duplicative conclusions for benefit denial on remand.” Aplt. Br. 42. It is true that the

Plan’s ultimate decision to deny benefits mirrored its initial decision on remand. But

its rationale on remand differed in that it was based only on “the express terms of the

Plan.” App. vol. 6, 378. Moreover, the district court did not preclude the Plan from

ultimately arriving at the same conclusion; in fact, it expressly stated that it “has not

directed the Plan to find that [Manna] is entitled to severance pay.” App. vol. 17,

1089 n.1. To the extent that Manna argues that the district court’s order approving the

Plan’s second determination did not address the concerns outlined in the district

court’s remand order, we decline Manna’s invitation to second guess the district

court’s understanding of its own instructions. See United States v. Little, 60 F.3d 708,



      3
        Manna also argues that it was arbitrary and capricious of the Plan not to give
him a Notice of Layoff because the Plan was “required” to do so. Aplt. Rep. 8. But he
points to nothing in the Plan that obligated the Plan to give him a Notice of Layoff.
                                            10
712 n.2 (10th Cir. 1995) (explaining that “[t]he district court surely knows more

about the meaning of its own orders than we do” (quoting G.J.B. & Assocs., Inc. v.

Singleton, 913 F.2d 824, 831 (10th Cir. 1990))). And in any event, Manna does not

explain how this purported error in the district court’s order impacts our review of

the Plan’s determination.

      Accordingly, we agree with the district court that the Plan’s decision denying

Manna benefits was not arbitrary and capricious because Manna did not meet the

requirements outlined in the Plan’s written terms. In other words, the Plan’s decision

“was made on a reasoned basis,” Van Steen., 878 F.3d at 997, and supported by

“more than a scintilla” of adequate evidence. Graham, 589 F.3d 1358.

II.   ERISA Attorney’s Fees

      Manna next argues that the district court wrongly rejected his claim for

attorney’s fees under ERISA. We “review[] a district court’s fee decision in an

ERISA matter for an abuse of discretion.” Van Steen, 878 F.3d at 1000. Under that

standard, we will uphold the district court’s determination unless we have “a definite

and firm conviction that the lower court made a clear error of judgment or exceeded

the bounds of permissible choice in the circumstances.” Id. (quoting Moothart v. Bell,

21 F.3d 1499, 1504 (10th Cir. 1994)). In an ERISA action, a “court in its discretion

may allow a reasonable attorney’s fee and costs of action to either party.” 29 U.S.C.

§ 1132(g)(1). “A fee claimant need not be a prevailing party to be eligible for an

award of attorney’s fees and costs under ERISA.” Cardoza v. United of Omaha Life

Ins. Co., 708 F.3d 1196, 1207 (10th Cir. 2013). Instead, a district court may award

                                          11
attorney’s fees “as long as the fee claimant has achieved ‘some degree of success on

the merits.’” Id. (quoting Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 245

(2010)). To decide whether a fee claimant achieved that success, a district court “may

consider” five different factors:

      (1) the degree of the opposing party’s culpability or bad faith; (2) the
      opposing party’s ability to satisfy an award of fees; (3) whether an
      award of fees would deter others from acting under similar
      circumstances; (4) whether the party requesting fees sought to benefit
      all participants and beneficiaries of an ERISA plan or to resolve a
      significant legal question regarding ERISA; and (5) the relative merits
      of the parties’ positions.
Id.

      Manna argues that the district court abused its discretion because it rejected

his application based on his status as the nonprevailing party instead of considering

the factors listed in Cardoza and because the district court’s initial remand order

constituted “some degree of success on the merits.” Id. (quoting Hardt, 560 U.S. at

245). True, the district court denied Manna’s motion for attorney’s fees because it

determined that Manna was not the prevailing party. But instead of explaining why

he achieved some success, Manna points out only that the Supreme Court has

declined to decide whether a remand order, standing alone, is enough to award

attorney’s fees. See Hardt, 560 U.S. at 256. And to be entitled to attorney’s fees,

Manna must demonstrate that he “has achieved ‘some degree of success on the

merits.’” Cardoza, 708 F.3d at 1207 (quoting Hardt, 560 U.S. at 245). Here, Manna

gives us no reason to determine that the district court’s remand order represented any

success on the merits. And none of the cases he cites involve a court awarding fees


                                           12
simply because of a decision to remand to the plan. Instead, in all those cases there

were other factors beyond a remand order that supported awarding fees. See Hardt,

560 U.S. at 256 (noting plan changed benefits determination on remand); McKay v.

Reliance Standard Life Ins. Co., 428 F. App’x 537, 546 (6th Cir. 2011) (unpublished)

(affirming fee award where, among other factors, plan acted in bad faith and award

would have “deterrent effect”); Hollingshead v. Stanley Works Long Term Disability

Plan, No. 10-CV-03124-WJM-CBS, 2012 WL 6151994, at *2 (D. Colo. Dec. 11,

2012) (finding fee award would encourage plan to pay benefits “without the need for

extensive and costly litigation”); James F. ex rel. C.F. v. CIGNA Behavioral Health,

Inc., No. 1:09-CV-70-DAK, 2011 WL 2441900, at *2 (D. Utah June 15, 2011)

(finding that plan “acted culpably” and fee award would have deterrent effect). Here,

by contrast, Manna fails to explain how any of the other Cardoza factors would

support a fee award. Cardoza, 708 F.3d at 1207.

       Accordingly, on these facts we cannot say that a remand order alone

constitutes some success on the merits. And because Manna makes no effort to

explain why it might, we are not left with “a definite and firm conviction” that the

district could should have awarded fees based on a remand order alone. Van Steen,

878 F.3d at 1000 (quoting Moothart, 21 F.3d at 1504).

III.   ADA “Regarded As” Disabled

       Manna next argues that the district court erred by granting Phillips 66

summary judgment on Manna’s claim that Phillips 66 terminated him because it

regarded him as disabled. We review de novo a district court’s decision granting

                                          13
summary judgment, applying the same summary-judgment standard as the district

court. Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1141 (10th Cir. 2011).

Under that standard, summary judgment is appropriate when “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). “A genuine dispute as to a

material fact ‘exists when the evidence, construed in the light most favorable to the

non[]moving party, is such that a reasonable jury could return a verdict for the

non[]moving party.’” Carter, 662 F.3d at 1141 (quoting Zwygart v. Bd. of Cty.

Comm’rs, 483 F.3d 1086, 1090 (10th Cir. 2007)).

      ADA disability discrimination claims that rely only on circumstantial

evidence, such as Manna’s, are generally subject to the burden-shifting framework

first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Smothers v. Solvay Chems., Inc., 740 F.3d 530, 538 (10th Cir. 2014). Under that

framework, Manna must first make a prima facie showing of disability discrimination

by demonstrating “that, at the time he was fired, (1) he was a disabled person as

defined by the ADA; (2) he was qualified, with or without reasonable

accommodation, to perform the essential functions of his job; and (3) he was fired

because of his disability.” Carter, 662 F.3d at 1142. Manna must make this

demonstration by a preponderance of the evidence. Smothers, 740 F.3d at 539

(quoting EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1197 (10th Cir.

2000)). If Manna makes that prima facie showing, the burden then shifts to Phillips

66 to offer a legitimate, nondiscriminatory reason for its decision to discharge him.

                                          14
Id. If Phillips 66 does so, the burden then returns to Manna to show that Phillips 66’s

stated reason for firing him was pretextual. Id.

      To demonstrate that “he was a disabled person as defined by the ADA,”

Manna does not argue that he actually suffered from a disability. Carter, 662 F.3d at

1142. Instead, he argues that Phillips 66 regarded him as having an alcohol or other

substance-abuse-related disability. The ADA defines “disabled person” as, among

other things, “being regarded as having . . . an impairment.” 42 U.S.C.

§ 12102(1)(C). And the ADA considers a person to be regarded as having an

impairment if the person “has been subjected to an action . . . because of . . . [a]

perceived physical or mental impairment.” § 12102(3)(A). In other words, others

must have perceived the person as having an impairment and the person must have

“been subjected to an action . . . because of” that perceived impairment. Id. But a

perceived impairment does not meet this definition if it is “transitory and minor,” that

is, if others perceive the person of having “an impairment with an actual or expected

duration of [six] months or less.” § 12102(3)(B).

      Combining these standards with the facts of this case, Manna must first

demonstrate that he meets the regarded-as-disabled definition of disabled person

under the ADA by showing that (1) Phillips 66 perceived him as having an

impairment, (2) the impairment had a duration of more than six months, (3) Phillips

66 perceived the impairment when it terminated him, and (4) Phillips 66 terminated

him because of his perceived impairment. See § 12102(3)(A); Adair v. City of

Muskogee, 823 F.3d 1297, 1306 (10th Cir. 2016). Once he has demonstrated that “he

                                           15
was a disabled person as defined by the ADA,” Manna must then also show that “he

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

functions of his job; and . . . he was fired because of his disability.” Carter, 662 F.3d

at 1142.4 After he has met this burden, the burden then shifts to Phillips 66 to offer a

legitimate, nondiscriminatory reason for its decision to discharge him. Smothers, 740

F.3d at 539. If Phillips 66 does so, the burden then returns to Manna to show that

Phillips 66’s stated reason for firing him is pretextual. Id.

       The district court found, as relevant here, that Manna demonstrated that

Phillips 66 “considered” him to be impaired. App. vol. 17, 1076. Specifically, the

district court noted that several Phillips 66 employees believed he was under the

influence of drugs or alcohol or that he suffered from some other physical or mental

health issue on the day he underwent drug testing in Houston, and it concluded that

Phillips 66 therefore perceived Manna to be impaired. The district court never made

explicit findings regarding either the duration of the perceived impairment or whether

Phillips 66 terminated Manna because it perceived him as impaired as required by the

regarded-as-disabled definition. Nevertheless, it then proceeded to conclude that he

“fail[ed] to address the causation element” of the prima facie demonstration of

disability discrimination. App. vol. 17, 1077; see Carter, 662 F.3d at 1142. Finally,


       4
         As shown, this framework requires two showings of causation. First, in order
to show that he was disabled under the regarded-as definition of disabled, Manna
must show that Phillips 66 terminated him because it perceived him to be impaired.
See § 12102(1)(C), (3)(A). Second, in order to make his prima facie demonstration of
disability discrimination, Manna must show that Phillips 66 terminated him because
of a disability. See Carter, 662 F.3d at 1142
                                            16
the district court concluded that even if Manna had met his prima facie burden, he

“cited no evidence at all that Phillips[ 66’s] proffered reason was pretextual” and thus

did not carry his ultimate burden to show an inference of pretext.

      Manna challenges these conclusions on appeal by arguing for the first time

that once he demonstrated that he met the regarded-as-disabled definition, he “need

not make separate showings of causation and pretext.” Aplt. Br. 48. In support of his

argument, Manna cites Lewis v. City of Union City, 934 F.3d 1169 (11th Cir. 2019).

In Lewis, the Eleventh Circuit explained that the McDonnell Douglas causation

analysis is “built in” to the regarded-as analysis because the definition of “regarded

as” includes a requirement that an employer took some prohibited action because it

regarded its employee as impaired. 934 F.3d at 1184 (second quoting § 12102(3)(A));

compare § 12102(3)(A) (defining “disabled person” as, among other things, person

who “has been subjected to an action . . . because of . . . [a] perceived physical or

mental impairment” (emphasis added)), with Carter, 662 F.3d at 1142 (explaining

that the prima facie demonstration of disability discrimination requires showing

person “was fired because of his disability” (emphasis added)). Thus, according to

the Eleventh Circuit, the same evidence that demonstrates causation under

§ 12102(3)(A) also demonstrates causation under the McDonnell Douglas prima facie

demonstration of disability discrimination. See Lewis, 934 F.3d at 1184; cf. Carter,

662 F.3d at 1142. Relying on Lewis, Manna argues that a showing of causation “need

only be made once” and that he made this showing by demonstrating that Phillips 66



                                           17
regarded him as impaired. Aplt. Br. 49 (quoting 29 C.F.R. pt. 1630, app.,

§ 1630.2(l)).

      But Manna forfeited this argument below by not presenting it to the district

court and waived it on appeal by not arguing for plain-error review. See McKissick v.

Yuen, 618 F.3d 1177, 1189–90 (10th Cir. 2010). And even if we were to accept

Manna’s argument that he need only demonstrate causation once, he has failed to

make that demonstration at all. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 675

(10th Cir. 1998) (exercising discretion to reject waived argument on merits). As we

have noted, the district court did not explicitly address the causation requirement in

the regarded-as-disabled definition. But the district court did specifically conclude

that Manna failed to address or even acknowledge the causation requirement for

disability discrimination. Although Manna now argues that he did make a causation

argument as to disability discrimination before the district court, our review of his

briefing below reveals no such argument. Accordingly, even if we accept Manna’s

argument that a showing of causation “need only be made once,” he must still make

that showing at least once. Aplt. Br. 49 (quoting 29 C.F.R. pt. 1630, app., §

1630.2(l)). And he fails to do so.

      Moreover, assuming Manna did make a prima facie demonstration of disability

discrimination under the McDonnell Douglas framework, he must nevertheless show

that Phillips 66’s stated reason for terminating him was pretextual. Even Lewis,

contrary to Manna’s argument, proceeded to analyze whether the employer

terminated the employee for pretextual reasons. 934 F. 3d at 1185–86. Here, when

                                           18
the burden shifted to Phillips 66 to justify its decision to terminate Manna, Phillips

66 offered a legitimate, nondiscriminatory reason for terminating Manna—his

attendance issues. Specifically, Phillips 66 warned Manna in May 2015 to report to

work no later than 9:00 a.m. or he risked termination, but he continued to come to

work late. Thus, Phillips 66 met its burden.

      Because Phillips 66 provided a legitimate, nondiscriminatory reason for

terminating Manna, the burden shifts back to Manna to show that this reason is

pretextual. See Smothers, 740 F.3d at 539. And to demonstrate pretext, Manna must

“show[] either that a discriminatory reason more likely motivated the employer or

that the employer’s proffered explanation is unworthy of credence.” Id. (quoting

Zamora v. Elite Logistics, Inc., 478 F.3d 1160, 1166 (10th Cir. 2007)). This showing

can include, for instance, evidence that other employees were not treated similarly for

the same conduct or evidence of “‘weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions’ in the employer’s stated reason for terminating the

employee.” Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1311 (10th Cir. 2017)

(quoting Macon v. United Parcel Serv., Inc., 743 F.3d 708, 714 (10th Cir. 2014)).

      In arguing that he meets this burden, Manna insists that he never had an

attendance problem and that he complied with the May 2015 warning. But the

portions of the record he points to undermine, rather than support, his argument that

he did not have an attendance problem. For example, he cites deposition testimony of

a coworker who testified that Manna’s absence caused work delays. He also cites

testimony from his supervisor, Ginyovszky, who testified that she received feedback

                                           19
from other employees that Manna was not “available and present.” App. vol. 14, 909.

Rather than confronting this testimony, Manna suggests that even if he had

attendance issues, they did not impact his work; for example, Manna asserts that the

coworker could not identify a specific project that was late because of his poor

attendance. But as the district court explained, evidence that “his performance was

not poor enough to warrant termination” does not show that Phillips 66’s decision

was pretextual. App. vol. 17, 1077. Thus, Manna has not shown that “a

discriminatory reason more likely motivated” Phillips 66 or that its stated reason for

terminating him is “unworthy of credence.” Smothers, 740 F.3d at 539 (quoting

Zamora, 478 F.3d at 1166 (10th Cir. 2007)).

      Accordingly, the district court did not err by granting summary judgment to

Phillips 66 on Manna’s claim for disability discrimination.

IV.   Oklahoma State Law

      Finally, Manna argues that the district court improperly rejected his claim

under Oklahoma’s Standards for Workplace Drug and Alcohol Testing Act (the

Testing Act), Okla. Stat. tit. 40, §§ 551–63. The Testing Act provides certain

requirements for Oklahoma employers who choose to test their employees or job

applicants for drugs or alcohol. See id. at §§ 553(B), 554. The Act permits employers

to terminate employees who refuse to be tested or who test positive for drugs or

alcohol. Id. at § 562(B). An employee may bring a civil suit for lost wages if an

employer “had a specific intent to violate the [A]ct.” Id. § 563(A). Manna argues that

the Act prohibits an employer from terminating an employee who undergoes

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workplace drug or alcohol testing and receives only negative test results. And he

alleges that Phillips 66 violated the Testing Act by terminating him after he tested

negative. But the district court rejected this argument because the Testing Act “does

not expressly prohibit an employer from terminating an employee it suspects of using

illegal drugs or alcohol after the individual tests negative.” App. vol. 17, 1078. We

review de novo the district court’s interpretation of state law. Hansen v. SkyWest

Airlines, 844 F.3d 914, 922 (10th Cir. 2016).

       On appeal, Manna acknowledges that the Testing Act does not expressly

prohibit an employer from terminating an employee who tests negative for drugs or

alcohol. He instead argues that because the Act expressly states that employers may

terminate employees who test positive or refuse to be tested, it therefore implies that

employers may not terminate employees who, like him, test negative. But as the

district court explained, employers in Oklahoma may generally terminate employees

for any reason that does not otherwise violate the law. See Burk v. K-Mart Co., 770

P.2d 24, 26 (Okla. 1989). And Manna points to no part of the Testing Act that

overrides that general rule. Further, Manna cites no authority that supports his

interpretation of the Act. He relies only on Jones v. State ex rel. Office of Juvenile

Affairs, 268 P.3d 72 (Okla. 2011). But Jones addressed whether the Testing Act

required a state employee to exhaust state administrative remedies before she sued; it

says nothing about whether an employer can terminate an employee who tests

negative for drugs or alcohol. Id. at 75, 79. Thus, we reject Manna’s argument and

affirm the district court.

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                                      Conclusion

      The district court applied the correct standard of review to Manna’s ERISA

claim, and on appeal we agree that the Plan’s decision denying him severance

benefits was not arbitrary and capricious. And because Manna did not explain how a

remand to the Plan alone constituted some success, the district court did not abuse its

discretion in denying his request for ERISA attorney’s fees. Next, regarding Manna’s

ADA claim, even if Manna had not waived the causation argument, he failed to

demonstrate that he met the regarded-as definition of disabled. Further, because

Manna failed to carry his burden to show causation or pretext, the district court

correctly found that he had not made a prima facie demonstration of disability

discrimination or that Phillips 66’s stated reason for terminating him was pretextual.

Finally, the district court correctly found that Manna did not state a claim for relief

under Oklahoma state law. Thus, we affirm the district court’s orders granting

summary judgment to Phillips 66 and the Plan.


                                             Entered for the Court


                                             Nancy L. Moritz
                                             Circuit Judge




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