Hampton v. Utah Department of Corrections
Citation87 F.4th 1183
Date Filed2023-12-04
Docket21-4127
Cited17 times
StatusPublished
Full Opinion (html_with_citations)
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 1
FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
December 4, 2023
UNITED STATES COURT OF APPEALS
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
ROBERT HAMPTON,
Plaintiff - Appellant,
v. No. 21-4127
UTAH DEPARTMENT OF
CORRECTIONS; DOES 1-50,
Defendants - Appellees.
_________________________________
Appeal from the United States District Court
for the District of Utah
Case No. 1:18-CV-00079-CMR
_________________________________
Aaron K. Bergman of Bearnson & Caldwell, LLC (Brad H. Bearnson, Wayne
K. Caldwell, and Aubri O. Thomas, with him on the briefs), Logan, Utah, for
Appellant.
Joshua D. Davidson, Assistant Utah Solicitor General, Salt Lake City, Utah,
for Appellee Utah Department of Corrections.
________________________________
Before BACHARACH, EID, and ROSSMAN, Circuit Judges.
_________________________________
ROSSMAN, Circuit Judge.
_________________________________
The Rehabilitation Act of 1973, 29 U.S.C. § 701et seq., forbids employers receiving federal funds from discriminating against their Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 2 disabled employees. Robert Hampton sued his former employer, the Utah Department of Corrections (UDC or the Department), for allegedly violating the Rehabilitation Act by refusing to accommodate his disability, treating him in a disparate manner on the basis of that disability, and retaliating against him for his requested accommodation. The district court granted UDCâs motion for summary judgment on all three claims. Exercising jurisdiction under28 U.S.C. § 1291
, we reverse the district courtâs grant of
summary judgment on Mr. Hamptonâs failure-to-accommodate claim and
remand for further proceedings. We affirm the district courtâs grants of
summary judgment on Mr. Hamptonâs disparate-treatment and retaliation
claims.1
1 The parties use âdisparate treatment,â âdiscrimination,â and
âintentional discriminationâ to refer to Mr. Hamptonâs disparate-treatment
claims. UDC Br. at 55; Appellant Br. at 6, 9. The district court referred to
this cause of action as a âdiscriminationâ claim. R.1556.
But âdiscriminationâ under the Rehabilitation Act includes both
discriminatory, intentional actsâhere, disparate treatment and
retaliationâand discriminatory inactionâhere, failure to accommodate. 42
U.S.C. § 12112(b); see Exby-Stolley v. Bd. of Cnty. Commârs,979 F.3d 784, 797
(10th Cir. 2020) (en banc). Because this case involves alleged
discrimination of different kinds, we use âdisparate treatmentâ to refer to
what Mr. Hampton calls his âdiscriminationâ claim.
2
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 3
I
A
Mr. Hampton was born missing the second and fifth digits on both
hands, the result of a congenital birth condition.2 Mr. Hamptonâs hand and
wrist structures also lack the bones, tendons, and muscles associated with
those fingers. Because of this disability, Mr. Hampton encounters
difficulties âgrasping, pulling, or performing other . . . functions with his
handsâ R.25.
In May 2016, UDC hired Mr. Hampton to serve as a Corrections
Officer. Mr. Hampton had previously worked for the Arizona Department of
Corrections. UDC Warden Larry Benzon hired Mr. Hampton with
knowledge both of his disability and Mr. Hamptonâs possible future need for
accommodations.
Mr. Hampton worked first as a âUtility,â a nonpermanent role in
which he rotated through different assignments at UDC. While the Utility
role itself is generally unarmed, some of Mr. Hamptonâs assignments
required him to carry a firearm. Indeed, the record indicates Mr. Hampton
had occasion to carry a weapon almost 80 times while serving in the Utility
position.
2 We draw this background from the summary judgment record before
the district court, noting any contested facts.
3
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 4
As a condition of eligibility for permanent employment, UDC requires
Corrections Officers to complete the Departmentâs Training Academy.
Corrections Officers must train and qualify on UDC-approved âdepartment-
issued firearms.â
Whether a weapon is âapprovedâ by UDC for on- or off-duty use is a
matter addressed by the Departmentâs Firearms Policy (the Policy). The
Policy, promulgated October 6, 2014, outlines Department âpolicy and
procedure for the centralization, purchasing, issuance, safety, handling,
restrictions, and use of firearms and ammunition.â R.449. According to the
documentâs âRationale,â â[t]he reduction of risk through safe use of firearms
is the purpose of department policy and training.â Id. at 450. The Policy
4
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 5
specifies those rifles,3 shotguns,4 and handguns5 considered to be
Department-approved, and which may be issued to âauthorized peace
officers for on or off duty use,â in the case of handguns, and for use âwhile
on duty,â in the case of rifles and shotguns. Id. at 459-61. Across these three
categories, the Policy approves for issue weapons branded by nine different
3 Approved rifles are:
1. Colt/Bushmaster/DMPS [sic]/Rock River/Smith and Wesson/Sig
Sauer, 5.56/.223 caliber, black finish with a barrel of not less than
10 inches, excluding the length of any flash suppressor;
2. Heckler & Koch G-36 rifle, .223 caliber, models C, K, and E,
semi-automatic, black finish;
3. Heckler & Koch MP5, 9MM caliber, semi and full automatic
submachine gun, 9 inch barrel, black finish, permanent or
collapsible stock. (Special Operation Only);
4. Remington 40XB, .223 and .308 caliber heavy barrel bolt action
rifle, five round capacity fixed magazine, wood stock, with mounted
scope. (Special Operation Only); or
5. Remington PSS700, (police sniper special) .223 and .308 caliber
bolt action rifle, five round capacity fixed magazine, wood stock,
with mounted scope. (Special Operation Only).
R.460.
4 The approved shotgun is a âRemington 870 12 gauge pump action
shotgun, 14â, 18â, or 20â barrel, 4 or 7 round capacity, tube fed rounds.â
R.459.
5 The approved handguns are âGlock 9mm and .40 caliber
semi-automatic pistols,â provided, âsubcompact Glock 26 & 27 may only be
carried as a primary duty weapon when working in a plain clothes
assignment and approved by the staff memberâs RA/Warden or
Division/Bureau Director/designee.â R.459.
5
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 6
manufacturers. But for handguns, the Policy approves only Glock-brand
firearms.
During his employment interview, Mr. Hampton informed Warden
Benzon he âmay need an accommodation in the weapons when he goes
through the [A]cademy.â Id. at 1516 (citation omitted). While Warden
Benzon explained this request was âprematureââMr. Hampton had not yet
received an offer of employmentâhe told Mr. Hampton âthat when he gets
to the range part of the [A]cademy, he could have a conversation with Travis
Knorr [then-Firearms Training Manager and Armorer], and then during
that conversation they would make the determination if there was
something that needed to happen or if they could help him with his
qualifications.â Id. at 1062-63.
After he was hired, and several weeks before beginning the required
firearms training at the Academy, Mr. Hampton remained concerned about
his ability to complete the training and qualify on the Department-approved
Glock 17 because of his disability. Mr. Hampton reached out to Aaron
Horsley, then serving as UDC Firearms Training Coordinator. Mr. Horsley
provided Mr. Hampton a plastic gun similar to the Glock 17 and a holster
for practice before the training began. On July 7, 2016, Mr. Hampton
successfully completed the firearms training, qualifying to use all three
6
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 7
UDC-issued firearms: the Remington, the Colt, and the Glock.6 He
requalified, as the Department requires, in July 2017.
Though he had passed the firearms training, Mr. Hampton was still
worried about using the Department-issued Glock on the job. On February
8, 2017, Mr. Hampton wrote to UDCâs Human Resource Specialist, Jennifer
Wilde, to request an accommodation:
Hi Jennifer this is Officer Hampton, I need to request a
reasonable accommodation for [ADA][7] purposes to use a
firearm other than the glock. It is difficult for me to get a solid
grip on the gun and I have to readjust my grip after two rounds
and with my current position as a utility and the amount of
overtime that I do at UMC I would feel better using something
that I am more comfortable using. If you could call me in Uinta
3 today I would appreciate it. Thank you.
Id. at 1543 (first alteration in original). Ms. Wilde replied to the email the
following day and then spoke with Mr. Hampton by telephone. During this
call, Ms. Wilde requested some âspecific informationâ about the proposed
accommodation. Id. at 967-68. A few days later, Mr. Hampton sent Ms.
Wilde information about a 1911 Series handgun manufactured by
6 As relevant here, Mr. Hampton received a score of 21 on the Glock
handgun. The score required to pass was 20.
7 Mr. Hamptonâs claims on appeal arise under the Rehabilitation Act,
not the Americans with Disabilities Act of 1990 (the ADA), 42 U.S.C.
§§ 12111-12117. But as the Departmentâs HR Specialist, Ms. Wilde was
UDCâs âADA coordinator,â tasked with âfacilitat[ing]â accommodation
processes. R.984-85.
7
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 8
Springfield Armory (âSpringfield 1911â). Division Director Jerry Pope told
Ms. Wilde to refer the request to Mr. Knorr, with whom Ms. Wilde left a
voicemail.
Mr. Hampton received no response from UDC for two months, so in
April 2017, he took it upon himself to speak with Mr. Knorr about his
requested accommodation. Mr. Knorr denied Mr. Hamptonâs
accommodation after deciding the Department âdo[esnât] hand out 1911s.â
Id. at 1334. Mr. Knorr never informed Mr. Hampton of this rejection in
writing.8 Ms. Wilde likewise never provided Mr. Hampton a written denial
of his February 2017 accommodation request.
While still serving in the temporary Utility role, Mr. Hampton applied
for multiple permanent armed positions with the Department. He
ultimately secured an unarmed permanent position as a âTimpanogos
Roverâ (Timp Rover) on June 17, 2017. In certain circumstances and during
8 The district court found Mr. Knorr never âcommunicatedâ his
rejection of the request for a Springfield 1911 to Mr. Hampton at all. R.1544.
On appeal, UDC claims Mr. Knorr verbally relayed his decision to Mr.
Hampton, UDC Br. at 13 (citing R.1335-36), but Mr. Hampton denies this
ever took place. R.1258 (testifying Mr. Knorr said only that he would âlook
into [the request] and get back with meâ). In any case, there is no dispute
the Department never provided Mr. Hampton with any sort of formal
written denial of his request for a Springfield 1911.
8
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 9
some overtime assignments, however, Mr. Hampton was still required to
carry a firearm.9
Six days into his Timp Rover assignment, Mr. Hampton became the
subject of a UDC administrative review conducted by Correctional
Lieutenant Jerry Price. Lieutenant Price investigated two incidents: (1) Mr.
Hamptonâs June 22, 2017, handling of a Variable Kinetic System (VKS) gun
and (2) Mr. Hamptonâs involvement on June 21, 2017, in the removal of a
dead bird from the top of a fence.
At the end of Lieutenant Priceâs review, the Department found:
1. Mr. Hamptonâs âinvolvement in the VKS incident created a
hazardous environment by handling a weapon that he had never
been trained onâ;
2. Mr. Hamptonâs âinvolvement in the dead bird incident risked the
safety and security of the Department by putting a dead bird over
securityâ; and
3. Mr. Hampton âwas not truthful during his interview or in his
written memoâ prepared as part of the investigation.
Id. at 1544.10
9 We note Mr. Hampton argues the transfer to the Timp Rover position
meant âcarrying a weapon abruptly ended.â Appellant Br. at 19 (citation
omitted). Mr. Hampton does not appear to dispute he âcould possibly still
carry during overtime shiftsâ; he just argues that fact is âof little to no
importance to the adverse impact of limiting Hampton from any permanent
armed posts.â Id.
10 The parties dispute the details of these incidents. UDC claims Mr.
Hampton, without proper training, handled the VKS gun, resulting in
damage to the equipment. He then, according to UDC, initially lied to
Lieutenant Price about his presence during the VKS incident. The dead bird
9
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 10
Warden Benzon then fired Mr. Hampton, apparently with no
knowledge of Mr. Hamptonâs accommodation request.11 According to
Warden Benzon, Mr. Hampton was fired because UDC âidentified some
issues that would stand in the way of your successful performance.â Id. at
1517(citation omitted). On July 28, 2017, Director Pope wrote to Rollin Cook, UDCâs Executive Director, requesting âa no rehire [designation] on Officer Robert Hamptonâ based on alleged âhonesty issues[] and failure to follow security rules and practices.âId. at 1436
.
Mr. Hampton appealed his termination. On January 8, 2018, the
Department denied his appeal, concluding probationary employeesâlike
incident apparently involved Mr. Hamptonâs participation in the removal of
a dead bird from a prison yard fence with inmate and chapel officer
assistance while a restrained inmate waited for escort to the infirmary. Mr.
Hampton, for his part, points to the presence or involvement of other UDC
employees during both these incidents.
The district court found Mr. Hampton had failed to show whether
these other employees âwere true comparatorsâ to Mr. Hamptonâi.e.,
whether they were, like Mr. Hampton, still in their probationary period.
R.1559. The district court acknowledged Warden Benzonâs testimony âhe
knew about the other employee involved with the bird incident,â but
observed Mr. Hampton âfailed to bring forth evidence to dispute [the
Departmentâs] evidence that Benzon was unaware of the other employee
involved with the VKS incident at the time he made the decision to
terminate him.â R.1559-60 (citations omitted). Nothing in the record
supports disturbing these findings on appeal.
11 Mr. Hampton disputes Warden Benzonâs testimony that he had no
knowledge of the request. We address Mr. Hamptonâs arguments as
relevant to the disparate-treatment and retaliation claims.
10
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 11
Mr. Hamptonâcould not avail themselves of the UDC grievance policies.
Mr. Hampton then filed a charge with the United States Equal Employment
Opportunity Commission pursuant to 42 U.S.C. § 2000e-5. The U.S.
Department of Justice issued Mr. Hampton his notice of right to sue on
April 11, 2018. See 29 C.F.R. § 1601.28 (2023).
B
On July 5, 2018, Mr. Hampton sued UDC and Does 1-50 in federal
district court in Utah for violating Section 504 of the Rehabilitation Act. See
29 U.S.C. § 794 (prohibiting discrimination by state and local departments
and agencies that receive federal financial support).12 In his complaint, Mr.
Hampton alleged:
ďˇ The Department ârefused to provide Mr. Hampton with a
simple accommodation. . . . [which] would not have
constituted a material change in the Departmentâs
operations and . . . was necessary as to Mr. Hamptonâs own
safety while at workâ;
ďˇ The Department âretaliatedâ against him, as âMr.
Hampton was fired soon after requesting the
accommodationâ; and
ďˇ The Department discriminated against him with a âpolicy
. . . against assisting disabled individuals in accordance
with Section 504.â
12 The initial complaint also included causes of action under the ADA
and the Fourth, Fifth, and Fourteenth Amendments to the United States
Constitution. The district court granted dismissal of these claims under the
Eleventh Amendment. That ruling is not on appeal.
11
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 12
R.28-29.
On January 15, 2021, UDC moved for summary judgment on Mr.
Hamptonâs failure-to-accommodate, retaliation, and disparate-treatment
claims. On September 22, 2021, the district court granted that motion. This
timely appeal followed.
II
We review a grant of summary judgment de novo. See Ute Indian
Tribe of Uintah & Ouray Rsrv. v. McKee, 32 F.4th 1003, 1006(10th Cir. 2022). We assess the evidence in the light most favorable to the nonmoving partyâhere, Mr. Hamptonâand may affirm only if no genuine dispute exists as to any material fact and the movantâhere, UDCâis entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Ute Indian Tribe,32 F.4th at 1006
(citing Tesone v. Empire Mktg. Strategies,942 F.3d 979, 994
(10th Cir. 2019)). In the course of this analysis, we evaluate de novo the district courtâs legal conclusions. BNSF Ry. Co. v. Hiett,22 F.4th 1190, 1193
(10th Cir. 2022).
12
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 13
A
Mr. Hampton contends the district court erred in granting summary
judgment to UDC on his failure-to-accommodate claim. As we explain, we
agree.
The definition of disability discrimination in federal law includes ânot
making reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability.â 42 U.S.C.
§ 12112(b)(5)(A).13 To state a claim for failure to accommodate, Mr. Hampton must show: (1) he is disabled; (2) he is otherwise qualified for the job; and (3) he requested a plausibly or facially reasonable accommodation. Brown v. Austin,13 F.4th 1079
, 1084-85 (10th Cir. 2021). This test is not âonerous.â Norwood v. United Parcel Serv., Inc.,57 F.4th 779, 786
(10th Cir. 2023). To state this claim, Mr. Hampton does not need to establish discriminatory intent on the part of UDC because the law assumes that âany failure to provide reasonable accommodations for a disability is necessarily because of disability.â Lincoln v. BNSF Ry. Co.,900 F.3d 1166, 1204
(10th
13 The Rehabilitation Act directs courts to assess violations using âthe
standards applied under . . . the [ADA].â 29 U.S.C. § 794(d). âBecause the Rehabilitation Act incorporates standards from the ADA, â[c]ases decided under section 504 of the Rehabilitation Act are [] applicable to cases brought under the ADA and vice versa . . . .â Rivero v. Bd. of Regents of Univ. of N.M.,950 F.3d 754, 758
(10th Cir. 2020) (first alteration in original) (quoting Woodman v. Runyon,132 F.3d 1330
, 1339 n.8 (10th Cir. 1997)).
13
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 14
Cir. 2018) (emphasis added) (quoting Punt v. Kelly Servs., 862 F.3d 1040,
1048 (10th Cir. 2017)).
UDC does not dispute Mr. Hampton is disabled under the applicable
law or that he is otherwise qualified for the Corrections Officer position.14
Therefore, we examine only the third element of Mr. Hamptonâs prima facie
caseâwhether his request for a Springfield 1911 was a plausibly or facially
reasonable accommodation.
The district court concluded Mr. Hamptonâs request was facially
unreasonable. According to the district court, the accommodation Mr.
Hampton wantedâpermission to use a Springfield 1911 as a handgunâ
would remove an essential function of Mr. Hamptonâs job as a Corrections
Officer:
The undisputed facts show that under the Firearms Policy, only
Department-approved handguns are issued and may be carried
as a primary duty weapon and that the only Department-issued
handgun types are specified models of the Glock. The . . .
Firearms Policy does not contain any provision for an exception
to this rule. Hamptonâs requested accommodation clearly
violates the Firearms Policy because a Springfield [1911] is not
one of the approved Department-issued handgun types.
14 Before the district court, the parties disputed whether Mr. Hampton
satisfied the âotherwise qualifiedâ prong of his prima facie failure-to-
accommodate case. The district court correctly interpreted our caselaw to
conclude Mr. Hampton was otherwise qualified, and UDC does not appear
to contest this determination on appeal.
14
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 15
R.1550-51 (footnote omitted). Because the requested accommodation
âviolated the Firearms Policy,â the district concluded âit was facially
unreasonable, and Hampton has failed to meet the third element of his
prima facie claim.â Id. at 1551.
On appeal, Mr. Hampton argues the district court erred in concluding
he failed to meet his burden on this third element of his prima facie case.
He challenges the district courtâs reliance on the Firearms Policy alone,
Appellant Br. at 29-30, and the district courtâs conclusion the essential
functions of Mr. Hamptonâs job âcould be said to encompass a particular
brand of equipment,â id. at 25.
UDC urges affirmance, claiming the district court did not err in
finding âan essential functionâ of Mr. Hamptonâs job to be âqualifying on and
using only a Department-issued handgun.â UDC Br. at 27. âThe district
court,â according to UDC, âproperly granted summary judgmentâ to the
Department because Mr. Hampton âfailed to show a facially reasonable
accommodation.â Id. at 39.
Reviewing de novo, we agree with Mr. Hampton.
1
Reasonable accommodations are â[m]odifications or adjustments to
the work environment, or to the manner or circumstances under which the
position held or desired is customarily performed, that enable an individual
15
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 16
with a disability who is qualified to perform the essential functions of that
position.â 29 C.F.R. § 1630.2(o)(1)(ii) (2023). Paraphrasing this regulatory language, we have defined reasonable accommodations as âthose accommodations which presently, or in the near future, enable the employee to perform the essential functions of his job.â Dansie v. Union Pac. R.R. Co.,42 F.4th 1184, 1193
(10th Cir. 2022) (quoting Aubrey v. Koppes,975 F.3d 995, 1007
(10th Cir. 2020)).
Essential functions, in turn, are the âfundamental job duties of the
employment position the individual with a disability holds or desires.â 29
C.F.R. § 1630.2(n)(1). The term âdoes not include the marginal functions of the position.âId.
In determining whether a function is essential, we rely, in part, on what the employer tells us those fundamental duties are.Id.
§ 1630.2(n)(3)(i). â[C]ourts must give consideration to the employerâs judgment as to what functions of a job are essential.â Unrein v. PHC-Fort Morgan, Inc.,993 F.3d 873, 877
(10th Cir. 2021) (quoting Davidson v. Am. Online, Inc.,337 F.3d 1179, 1191
(10th Cir. 2003)). And though a function
does not become âessentialâ just because an employer says so, this court will
usually defer to the employerâs judgment absent evidence suggesting the
purportedly essential function has a tangential relationship with the actual
job, is inconsistently enforced, or otherwise lacks a nexus with business
16
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 17
needs. Mason v. Avaya Commcâns, Inc., 357 F.3d 1114, 1119 (10th Cir.
2004); Brown, 13 F.4th at 1086.
2
The district court held âan essential function of [Mr. Hamptonâs] job
was that he qualify15 on Department-issued firearms, which under the
Firearms Policy included the Glock.â R.1552. In other words, the district
court concluded a fundamental duty of Mr. Hamptonâs job was that he use
a Glock-brand handgun. Because, instead of a Glock handgun, Mr. Hampton
wanted to use a Springfield 1911, a handgun made by a different
manufacturer not among those provided for in the Policy, the district court
15 The district court first drew a fine distinction between qualifying
on and carrying as essential functions, see R.1549, but then seemed to
alternate between âcarrying the Glockâ as an essential function and
âqualify[ing] on Department-issued firearmsâ as the essential function of
reference. Id. at 1551-52.
On appeal, the parties do not draw the same distinction between
âqualifyâ and âcarry,â and agree the essential function at issue is Mr.
Hamptonâs ability to qualify and carry (or use) a firearm. See, e.g., Appellant
Br. at 30 (â[T]he essential function of [Mr. Hamptonâs] duties went to his
ability to qualify, carry, and use a primary sidearm.â); UDC Br. at 27 (âHere,
qualifying on and using only a Department-issued handgun as a primary
duty weapon is an essential function of the job.â).
17
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 18
concluded Mr. Hamptonâs ârequested accommodation violated the Firearms
Policy . . . [and] was facially unreasonable.â Id. at 1551.
In reaching its essential-function determination, the district court
was guided solely by UDCâs Firearms Policy. Because the Policy included
only Glock platform weapons as âapprovedâ handguns, UDC argued before
the district court that permitting Mr. Hampton âto carry a handgun other
than a Glock as his primary duty firearm . . . would require UDC to remove
an essential function of its Corrections Officer position.â Id. at 213. The
district court agreed:
Based on the undisputed evidence presented, the court finds the
Firearms Policyâs rules for the issuance of approved firearms are
job-related, uniformly enforced, and consistent with business
necessity and therefore entitled to deference. Because
Hamptonâs requested accommodation violated the Firearms
Policy, the court concludes that it was facially unreasonable,
and Hampton has failed to meet the third element of his prima
facie claim.
Id. at 1551.
On appeal, UDC again relies solely on the Firearms Policy to support
affirmance: â[Q]ualifying on and using only a Department-issued handgun
as a primary duty weapon is an essential function of the job. . . . [UDCâs]
Firearms Policy applies to all corrections officers and is uniformly
enforced[.]â UDC Br. at 27. And UDC directs us to âweigh[] heavily the
employerâs judgmentââas expressed by the Policyââregarding whether a
18
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 19
job function is essential.â Id. at 31 (quoting Adair v. City of Muskogee, 823
F.3d 1297, 1308 (10th Cir. 2016)).
But our due regard for an employerâs judgment does not require
unbounded deference. Certainly, we âweigh heavilyâ an employerâs
explanation of the essential functions of a job. But we have also âfirmly held
that âan employer may not turn every condition of employment which it
elects to adopt into a job function, let alone an essential job function, merely
by including it in a job description.ââ Adair, 823 F.3d at 1308(quoting Hawkins v. Schwanâs Home Serv., Inc.,778 F.3d 877, 889
(10th Cir. 2015)).
We conclude the district court erred in relying solely on the Firearms
Policy to find Mr. Hamptonâs accommodation request was facially
unreasonable.
âThe simple fact that an accommodation would . . . permit the worker
with a disability to violate a rule that others must obey [] cannot, in and of
itself, automatically show that the accommodation is not âreasonable.ââ US
Airways, Inc. v. Barnett, 535 U.S. 391, 398(2002). To conclude otherwise, the Barnett Court reasoned, would prevent Congressâs disability legislation from âaccomplish[ing] its intended objective.âId. at 397
. After all, most employers âwill have neutral rules governing the kinds of actions most needed to reasonably accommodate a worker with a disability.âId. at 398
.
Were the fact of a neutral ruleâs existence enough to defeat a requested,
19
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 20
otherwise reasonable accommodation, accommodations would be rare
indeed:
Neutral office assignment rules would automatically prevent
the accommodation of an employee whose disability-imposed
limitations require him to work on the ground floor. Neutral
âbreak-from-workâ rules would automatically prevent the
accommodation of an individual who needs additional breaks
from work, perhaps to permit medical visits. Neutral furniture
budget rules would automatically prevent the accommodation of
an individual who needs a different kind of chair or desk.
Id. at 397-98.
The Supreme Court continued: In 42 U.S.C. § 12111(9)(b), Congress provided specific examples of reasonable accommodations, including âjob restructuring,â âpart-time or modified work schedules,â âacquisition or modification of equipment or devices,â âand other similar accommodations.â And in âproviding such examples, [Congress] said nothing suggesting that the presence of [an employerâs] neutral rules would create an automatic exemptionâ sufficient to defeat a request for one of these representative reasonable accommodations. Barnett,535 U.S. at 398
. âNor,â the Court observed, âha[d] the lower courts made any such suggestion.âId.
We decline to extend our precedents to adopt any automatic
exemption today. Instead, we apply Barnettâs reasoning here: that Mr.
Hamptonâs proposed accommodation âviolate[d] [UDCâs] disability-neutral
20
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 21
rule cannot by itself place the accommodation beyond the Actâs potential
reach.â Id. at 397.
3
Having addressed the error in how the district court determined
carrying a Glock handgun was an essential function of Mr. Hamptonâs job,
we turn next to the substance of the district courtâs conclusion.
Before the district court and this court, Mr. Hampton argues the real
essential function of his job is âhis ability to use and carry a primary
sidearm weapon.â Appellant Br. at 24. In support of affirmance, UDC
reiterates âqualifying on and using only a Department-issued handgun as a
primary duty weapon is an essential function of the job.â UDC Br. at 27.
But in explaining the Firearms Policy, UDC argues:
ďˇ âThe purpose of the Firearms Policy is âto provide authorized
staff members with policy and procedure for the
centralization, purchasing, issuance, safety, handling,
restrictions, and use of firearms and ammunition.ââ Id. at 28
(quoting R.449).
ďˇ âThe policy states that â[t]he use and threatened use of
firearms is necessaryâ to prevent prison escapes, protect staff
and property, resolve inmate disturbance situations, and
carry out other public safety functions.â Id. (alteration in
original) (quoting R.450).
ďˇ Because ââ[f]irearms and their use involve riskâ to both staff
in possession of firearms and to others, âthe purpose of
department policy and training,â is â[t]he reduction of risk
through safe use of firearms.ââ Id. (alterations in original)
(quoting R.450).
21
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 22
By the Policyâs own terms, and UDCâs own summary, the relevant essential
function of Mr. Hamptonâs employment would seem to be his ability to safely
carry and use a firearmânot just a Glockâwhen required. And the
accommodation Mr. Hampton requested would, on its face, help him
perform that essential function, enabling him to carry a firearm safely, âon
equal footing with his peers.â Appellant Br. at 45. At the very least, we
would find Mr. Hampton has raised a genuine issue of material fact on the
essential functions of his employment. Accordingly, we find the district
court erred in concluding Mr. Hampton did not make a plausibly or facially
reasonable accommodation request when he asked to use a Springfield
1911. Instead, we find Mr. Hamptonâs request for alternative equipment fits
neatly within the categories of accommodations contemplated by Congress.
âIn our review of the antidiscrimination laws we must be mindful of
their remedial purposes . . . .â Trainor v. Apollo Metal Specialties, Inc., 318
F.3d 976, 983(10th Cir. 2002) (quoting Wheeler v. Hurdman,825 F.2d 257, 262
(10th Cir. 1987)). The Rehabilitation Act proscribed discrimination like that alleged by Mr. Hampton âto empower individuals with disabilities to maximize employment, economic self-sufficiency, [and] independence,â and to enhance âopportunities for individuals with disabilities . . . for competitive integrated employment.â29 U.S.C. § 701
(b)(1), (2). In
effectuating this goal, Congress required federal grantees to provide certain
22
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 23
reasonable accommodations. These reasonable accommodations included,
as an enumerated example, the âacquisition or modification of equipment
or devices.â 42 U.S.C. § 12111(9)(B); see also29 C.F.R. § 1630.2
(o)(2)(ii)
(defining reasonable accommodation to include âacquisition or
modifications of equipment or devicesâ).
To find the âacquisition or modification of equipment or devicesâ
facially unreasonable, when Congress used it as a paradigmatic example of
a reasonable accommodation, would, we believe, frustrate Congressâs stated
ends. Cf. Smith v. Midland Brake, Inc., 180 F.3d 1154, 1164 (10th Cir. 1999)
(en banc) (declining to adopt narrow construction of statutory provision
which would âdo[] violenceâ to the regulatory framework).
We are persuaded, too, by Mr. Hamptonâs explanation of the reasons
for his request. In assessing whether an accommodation is reasonable, this
court asks why the accommodation is sought. We have held an
âaccommodation is unreasonable on its face [when] it seeks to eliminate an
essential function of the . . . position.â Mason, 357 F.3d at 1124. In Mason, an essential function of the job was âphysical attendance in [the employerâs] administration centerâ; because the employee wanted to work at home, the request was facially unreasonable.Id.
In other words, when an employeeâs
requested accommodation fundamentally changes the job, rather than helps
the employee do the job, then that request may be facially unreasonable.
23
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 24
But Mason is wholly unlike the situation before us. Here, Mr.
Hampton argues persuasively he âsought an accommodation in furtherance
of doing his job.â Appellant Br. at 34-35. He requested âacquisition . . . of
equipment or devices,â 42 U.S.C. § 12111(9)(B), so as to perform his job safely and âon equal footing with his peers,â Appellant Br. at 43-45. This conforms to our circuitâs stated âidea of accommodation,â which âis to enable an employee to perform the essential functions of his job.â Mathews v. Denver Post,263 F.3d 1164, 1168
(10th Cir. 2001).
UDCâs contrary arguments are unavailing. The Department claims
Mr. Hamptonâs âaccommodation request was . . . unreasonable because it
was unnecessaryââMr. Hampton had already qualified on the Glock,
proving an accommodation was not needed. UDC Br. at 33. But as we have
explained, we reject the district courtâs conclusion, reached by reference
only to the Firearms Policy, that using a Department-issued Glock-platform
handgun was an essential function of Mr. Hamptonâs employment. See
Barnett, 535 U.S. at 397-98. Accordingly, we reject, too, UDCâs
characterization of Mr. Hamptonâs request as facially unnecessary and its
dismissal of his Rehabilitation Act accommodation as Mr. Hampton âjust
want[ing] what he wanted, his preferred gun.â UDC Br. at 34.
Instead, we conclude Mr. Hamptonâs request of an accommodation
specifically contemplated by Congress was a plausibly reasonable request
24
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 25
sufficient to satisfy the third step of his prima facie case. Mr. Hamptonâs
burden here was ânot a heavy oneâ; he was required only to âsuggest the
existence of a plausible accommodation, the costs of which, facially, do not
clearly exceed its benefits.â Woodman v. Runyon, 132 F.3d 1330, 1344(10th Cir. 1997) (quoting Borkowski v. Valley Cent. Sch. Dist.,63 F.3d 131, 138
(2nd Cir. 1995)). Because a jury, too, could conclude Mr. Hamptonâs requested accommodation was plausibly reasonable, the district court erred in granting summary judgment to UDC on this claim. See Dansie,42 F.4th at 1197
.16
To be sure, it is possible the costs of providing Mr. Hampton a
handgun other than a preapproved Glock could bring undue hardship to the
Department. But that is a matter for the district court to address on
remand, if UDC seeks to establish the affirmative defense of undue
hardship.17 Id. at 1193; see also Hwang v. Kan. State Univ.,753 F.3d 1159
,
16 The concurrence reaches the same result by finding a triable issue
exists as to the essential function of Mr. Hamptonâs job. While its
regulatory-factor approach is consistent with our precedent, we do not
understand our law to command its adoption, particularly whereâas hereâ
neither the parties nor the district court identified or applied the seven
factors in 29 C.F.R. § 1630.2(n)(3).
17 UDC invites us to âaffirm on an alternative ground,â namely that
the Department âwould still prevail on its affirmative defense of undue
hardship.â UDC Br. at 39.
continued
25
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 26
1161 (10th Cir. 2014) (â[A]n employer generally may avoid liability only if
it can prove the accommodation in question imposes an undue hardship on
its business.â). Summary judgment, however, will remain inappropriate if
Mr. Hampton âpresents evidence establishing a genuine disputeâ as to that
defense. Dansie, 42 F.4th at 1193.18
An undue-hardship inquiry involves a determination of whether âan
action requir[es] significant difficulty or expense, when considered in light
ofâ many factors, including:
ďˇ âthe nature and cost of the accommodation neededâ;
ďˇ âthe overall financial resources of the facility or facilities
involved in the provision of the reasonable
accommodation; the number of persons employed at such
facility; the effect on expenses and resources, or the
impact otherwise of such accommodation upon the
operation of the facility;â
ďˇ âthe overall financial resources of the covered entity, the
overall size of the business of a covered entity with respect
to the number of its employees; the number, type, and
location of its facilities;â and
ďˇ âthe type of operation or operations of the covered entity,
including the composition, structure, and functions of the
workforce of such entity; the geographic separateness,
administrative, or fiscal relationship of the facility or
facilities in question to the covered entity.â
42 U.S.C. § 12111(10)(A)-(B). We decline UDCâs invitation to perform a highly fact-intensive inquiry in the first instance on appeal, particularly where the relevant information to perform the undue hardship analysis is not in the record. See Faulkenburg v. Weir,350 F. Appâx 208, 210
(10th Cir.
2009) (unpublished) (âBecause th[e] analysis is a highly factual inquiry, it
is not appropriately handled by an appellate court in the first instance.â).
18Because we reverse the district court on its essential-function
determination, we do not reach Mr. Hamptonâs related argument that the
26
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 27
B
Mr. Hampton next contends the district court erred in granting
summary judgment to UDC on his disparate-treatment claim. We discern
no error.
To state a claim for disparate treatment under the Rehabilitation Act,
Mr. Hampton must show: (1) he is disabled; (2) he is qualified to perform
the essential functions of the job with or without accommodation; and (3)
he suffered an adverse employment action because of his disability.
Edmonds-Radford v. Sw. Airlines Co., 17 F.4th 975, 989-90(10th Cir. 2021). To withstand a motion for summary judgment, Mr. Hampton must raise a genuine dispute of material fact on each element of the prima facie case. Hawkins,778 F.3d at 883
. UDC does not challenge Mr. Hamptonâs disability or his qualification so, again, we are concerned only with the third prong of district court erred in declining to consider UDCâs alleged failure to engage in the interactive process that our caselaw requires of employers and employees. Appellant Br. at 45-46; see Norwood,57 F.4th at 779
(describing the interactive process as âan affirmative obligation to undertake a good faith back-and-forth process between the employer and the employee, with the goal of identifying the employeeâs precise limitations and attempting to find a reasonable accommodation for those limitationsâ (quoting Dansie,42 F.4th at 1193
)).
While we share with the district court the view âthe facts are
concerning in . . . terms of the lack of communication in the interactive
process and about the denial,â R.1558, we do not pass on the issue and leave
the district court to address it on remand.
27
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 28
the prima facie case. To create a triable issue on the third element of his
disparate-treatment claim, Mr. Hampton was required to show he suffered
(1) an adverse employment action (2) because of his disability. Brown, 13
F.4th at 1092. Mr. Hampton identifies two adverse employment actionsâ
the termination of his employment and his assignment as a Timp Roverâ
which we now discuss in turn.
1
The district court concluded Mr. Hampton âfailed to meet his burdenâ
on causation because he was unable to show âthat his disability was a
determining factor in [UDC]âs actions.â R.1557. On appeal, Mr. Hampton
argues the district court erred in granting summary judgment to the
Department on this claim because there was an âunspoken discriminatory
and retaliatory policyâ within UDC and because he alleges Warden Benzon
knew of, and terminated him on the basis of, his disability. Appellant Br. at
10-17.19 We cannot agree.
To show he was fired because of his disability, Mr. Hampton must
âpresent some affirmative evidence that disability was a determining factor
in the employerâs decision.â Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th
Mr. Hampton also argues the district court erred in concluding
19
there was no genuine dispute as to Warden Benzonâs knowledge of his
accommodation request. We address this argument in our discussion of Mr.
Hamptonâs retaliation claim.
28
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 29
Cir. 1997); see also Raytheon Co. v. Hernandez, 540 U.S. 44, 52(2003) (âLiability in a disparate-treatment case âdepends on whether the protected trait . . . actually motivated the employerâs decision.ââ) (alteration in original) (quotation omitted). At the summary judgment stage, this burden is neither âonerousâ nor âperfunctory.â Morgan,108 F.3d at 1323-24
(citation omitted). Mr. Hampton must show the circumstances around his termination âgive rise to an inferenceâ that it was based on his disability, Lincoln,900 F.3d at 1192-93
(citation omitted), and that UDC âacted with a discriminatory animus against [him] because [he] had a disabilityâ when it fired him, Aubrey,975 F.3d at 1014
. This discriminatory animus may be shown either by direct or circumstantial evidence. Tesone,942 F.3d at 995
.
Mr. Hampton claims UDC âhas an unspoken adverse action policy
against disabled employees who seek an accommodation during their
probationary employment period.â Appellant Br. at 21. Evidence of this
discriminatory policy, he argues, may be discerned from warnings not to
request accommodations during the probationary period. He also points to
an occasion when Warden Benzon asked Mr. Hamptonâs brother about Mr.
Hamptonâs lawsuit. Appellant Br. at 11. When Mr. Hamptonâs brother
claimed ignorance, Warden Benzon allegedly replied, âGood answer.â Id.
29
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 30
(citing R.1445-46).20 Mr. Hampton also directs us to the notice of separation
he received at termination, which he argues evidenced discriminatory
animus, relying on âissues that would stand in the way of [Mr. Hamptonâs]
successful performance,â and failing to âmention . . . misconduct.â Appellant
Br. at 21-22 (citation omitted).
We are unpersuaded. Recall, the third piece of Mr. Hamptonâs prima
facie disparate-treatment case requires evidence Warden Benzon
terminated Mr. Hamptonâs employment because of his disability. While
Warden Benzon undeniably knew of Mr. Hamptonâs disability, Mr. Hampton
has presented insufficient evidence to raise a triable issue as to the
Wardenâs potential discriminatory animus.
Regardless of their admissibility, in this case, the alleged warnings to
âhold offâ on requesting an accommodation do not present enough evidence
of discriminatory policy. Warden Benzonâthe undisputed decisionmaker
behind Mr. Hamptonâs terminationâknew of Mr. Hamptonâs disability
while interviewing Mr. Hampton. He knew, further, of Mr. Hamptonâs
intent to request an accommodation; Warden Benzon in fact suggested how
20 The district court ruled these alleged warnings were inadmissible
hearsay and found Warden Benzonâs âGood answerâ statement irrelevant
because it was allegedly made a year after Mr. Hamptonâs termination.
R.1557-58. On appeal, Mr. Hampton contends both these determinations
were erroneous. Appellant Br. at 11-12. Based on our disposition, however,
we need not and do not pass on these evidentiary rulings.
30
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 31
Mr. Hampton should go about the accommodation process. And the notice
of separation, while perhaps facially vague, capped an investigation with
which Mr. Hampton was undeniably familiar. UDC persuasively argues
Warden Benzon in fact overrode the objections of the Captains board to hire
Mr. Hampton in the first place, with full knowledge of his disability. UDC
Br. at 56. On these facts, we cannot find Mr. Hampton has presented
sufficient evidence from which an inference could reasonably be drawn that
disability discrimination motivated Warden Benzonâs decision to terminate
Mr. Hamptonâs employment with UDC.
2
Before this court, Mr. Hampton reprises the argument that his
assignment as a Timp Rover was also an adverse employment action. In
support, Mr. Hampton points out the Timp Rover position was unarmed but
he had requested an armed post. The district court, however, concluded Mr.
Hampton âfailed to establish that his reassignment was an adverse
employment action.â R.1556.
We agree with the district court. âAn adverse employment action is
one that causes a significant change in employment status or benefits.â
Brown, 13 F.4th at 1092. Our circuit âliberally define[s]â the phrase
âadverse employment action,â Stinnett v. Safeway, Inc., 337 F.3d 1213, 1217
(10th Cir. 2003), but still requires âa significant change in employment
31
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 32
status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant
change in benefits,â Sanchez v. Denver Pub. Schs., 164 F.3d 527, 532(10th Cir. 1998) (quoting Burlington Indus., Inc. v. Ellerth,524 U.S. 742, 761
(1998)).
Here, Mr. Hampton was assigned from a temporary post to a
permanent one. While his responsibilities were clearly altered, alteration of
responsibilities alone does not make an employment action adverse.
Stinnett, 337 F.3d at 1217(âActions presenting nothing beyond . . . âalteration of responsibilitiesâ . . . do not constitute adverse employment action.â) (quoting Sanchez,164 F.3d at 532
). The Timp Rover assignment
may not have been the position Mr. Hampton desired, but, on the record
before us, we cannot conclude it represented an adverse employment
action.21
21 Even assuming the Timp Rover assignment was an adverse
employment action, this prima facie disparate-treatment reassignment
claim would fail on the same âbecause of disabilityâ prong as the disparate-
treatment termination claim. Where, according to UDC, 93% of the
Corrections Officer positions available at UDC do not carry handguns, UDC
Br. at 13, and absent record evidence as to the who and why of the
reassignment decision-making process, we are not persuaded Mr. Hampton
has presented the necessary affirmative evidenceâdirect or
circumstantialâof UDCâs discriminatory animus in assigning him one of
those unarmed, permanent positions. See Morgan, 108 F.3d at 1323; Tesone,942 F.3d at 995
.
32
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 33
C
Mr. Hampton also contends the district court erred in granting
summary judgment to UDC on his retaliation claim.22 Again, we discern no
error.
To state a claim for retaliation under the Rehabilitation Act, Mr.
Hampton must show: (1) he engaged in protected opposition to
discrimination; (2) a reasonable employee would find the challenged action
materially adverse; and (3) a causal connection exists between the protected
activity and the materially adverse action. EEOC v. C.R. Eng., Inc., 644
F.3d 1028, 1051 (10th Cir. 2011). UDC does not challenge the first and
second elements of Mr. Hamptonâs prima facie retaliation case.
On appeal, Mr. Hampton argues the district court erred in concluding
he failed to show a causal linkâthe third element of his prima facie
retaliation claim. Recall, the district court found Warden Benzonâthe
relevant decisionmaker behind Mr. Hamptonâs terminationâdid not know
about his accommodation request. Because Warden Benzon ordered âthe
materially adverse actionâ without knowledge of the âprotected activity,â
the district court concluded Mr. Hampton could not establish the existence
22 Having concluded the district court did not err in finding the Timp
Rover assignment was not an adverse employment action, we analyze Mr.
Hamptonâs retaliation claim as regards his termination only, not his
reassignment.
33
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 34
of a causal connection between the accommodation request and his
termination. This was error, Mr. Hampton contends, because Warden
Benzonâs knowledge or lack thereof is a material and genuinely disputed
fact, foreclosing summary judgment.
âA fact is âmaterialâ if, under the governing law, it could have an effect
on the outcome of the lawsuit. A dispute over a material fact is âgenuineâ if
a rational jury could find in favor of the nonmoving party on the evidence
presented.â EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190
(10th Cir. 2000) (internal citation omitted). According to Mr. Hampton,
Warden Benzonâs knowledge of the request is material, and it is genuinely
disputed because the Department âadmits that its standard course of
conduct was to relay the accommodation request to Warden Benzon, [so] a
jury could find that such occurred, and that Benzon is lying and knew about
the request.â Appellant Br. at 13.
On the record presented, we must disagree. UDC correctly observes
Mr. Hampton has cited no evidence in the record indicating he, Ms. Wilde,
Director Pope, Mr. Knorr, or anyone else âmade Benzon aware of the
accommodation requestâ prior to the Wardenâs termination decision. UDC
Br. at 45. Indeed, Warden Benzon testified accommodation requests
âusuallyâ filter up through Human Resources to the Division Director to the
Warden, but he also explained that in certain cases they may not. R.1065-
34
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 35
66. We take Mr. Hamptonâs point that UDCâs lack of compliance with its
own processes may be troubling on its face. But Mr. Hamptonâs reference to
the standard practice alone is insufficient to create the âgenuine disputeâ
necessary to foreclose summary judgment on the issue. See Horizon/CMS
Healthcare, 220 F.3d at 1190.
Mr. Hampton is correct the law requires all reasonable inferences
from the record to be drawn in his favor. Appellant Br. at 6. But those
inferences depend on the record actually developed. Here, the record before
us does not support the inference Mr. Hampton asks us to drawâthat
Warden Benzon lied under oath when he said he had not been informed of
Mr. Hamptonâs request for a Springfield 1911 before firing Mr. Hampton.
Phillips v. Calhoun, 956 F.2d 949, 950 n.3 (10th Cir. 1992)
(âUnsubstantiated allegations carry no probative weight in summary
judgment proceedings.â).
D
Finally, Mr. Hampton challenges the district courtâs ârefus[al] to allow
[him] to testify as an expertâ regarding his disability. Appellant Br. at 46.
In an oral ruling, the district court held Mr. Hampton could not testify
as an expert âas to the causes or effects of [his] disability in relation to
weapons use.â R.1535. On appeal, Mr. Hampton contends his experience
35
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 36
and knowledge qualified him to so testify, and the district court mistakenly
concluded otherwise.23 Appellant Br. at 47-48. The district court did not err.
The admission of expert witness testimony is governed by Federal
Rule of Evidence 702. Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion if:
(a) the expertâs scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles
and methods; and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702; see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,
593-95(1993) (discussing these factors). Nothing in the Federal Rules of Evidence bars Mr. Hamptonâa party to the litigationâfrom testifying as his own expert. See Scheidt v. Klein,956 F.2d 963
, 968 n.4 (10th Cir. 1992)
(collecting cases âuphold[ing] the admission of expert testimony related by
23We agree with the district courtâs observation that much of Mr.
Hamptonâs proposed testimonyâto the extent it discussed his âpersonal
experience, . . . personal situation, [and] personal observations,â would be
âappropriate lay testimony.â R.1612.
36
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 37
a partyâ). He is, however, subject to the same admissibility standards as
any other proffered expert under Rule 702.
Mr. Hampton âbears the burden of showing that [his] proffered
expert[] testimony is admissible.â United States v. Nacchio, 555 F.3d 1234,
1241(10th Cir. 2009) (en banc) (citing Ralston v. Smith & Nephew Richards, Inc.,275 F.3d 965
, 970 n.4 (10th Cir. 2001)). The district courtâs gatekeeping role requires it to ensure the testimony is reliable and relevant. Tudor v. Se. Okla. State Univ.,13 F.4th 1019
, 1029 (10th Cir. 2021). In doing so, the district court is required to make specific findings on the record. Adamscheck v. Am. Fam. Mut. Ins. Co.,818 F.3d 576, 586
(10th Cir. 2016). The length and detail of these findings will depend on how complicated the methodology at issue is, Storagecraft Tech. Corp. v. Kirby,744 F.3d 1183, 1190
(10th Cir. 2014), but a cursory, absent, or âoff-the-cuffâ determination will not suffice, Adamscheck,818 F.3d at 587-88
(citation omitted); see also Goebel v. Denver & Rio Grande W. R.R. Co.,215 F.3d 1083, 1088
(10th Cir.
2000) (finding district court abused discretion in admitting expert
testimony when there was no statement in record indicating how Rule 702
analysis was performed).
We review the district courtâs decision to exclude the proffered expert
testimony under a two-step analysis. Tudor, 13 F.4th at 1029.
37
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 38
At the first step, we review de novo the question of âwhether the
district court employed the proper legal standard and performed its
gatekeeper role.â United States v. Rodriguez-Felix, 450 F.3d 1117, 1122
(10th Cir. 2006).
Here, Mr. Hampton does not appear to suggest the district court
altogether failed to perform its gatekeeper role. Nor does he contend the
district court neglected to adequately record its findings. Rightly so. The
district courtâs ruling on Mr. Hamptonâs proffered expert testimony made
adequate reference to the partiesâ arguments and applied controlling
caselaw to the issue. We therefore find the district court âemployed the
proper legal standard and performed its gatekeeper role.â Rodriguez-Felix,
450 F.3d at 1122. We thus proceed to step two.
At the second step, we engage in a more deferential review for abuse
of discretion. Dodge v. Cotter Corp., 328 F.3d 1212, 1223 (10th Cir. 2003). Under this standard, a district courtâs evidentiary ruling will not be disturbed unless it is âarbitrary, capricious, whimsical or manifestly unreasonableâ or when it evidences a âclear error of judgment or exceed[s] the bounds of permissible choice in the circumstances.â Atl. Richfield Co. v. Farm Credit Bank of Wichita,226 F.3d 1138, 1163-64
(10th Cir. 2000)
(citations omitted). While âwe review de novo the question of whether the
district court applied the proper standard and actually performed its
38
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 39
gatekeeper role in the first instance,â we âreview the trial courtâs actual
application of the standard in deciding whether to admit or exclude an
expertâs testimony for abuse of discretion.â Dodge, 328 F.3d at 1223 (citing
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 139 (1997)).
In applying Rule 702, the district court concluded, â[e]ven assuming
[Mr. Hampton] demonstrated specialized knowledge, skill, experience,
training, or education, he . . . fail[ed]â to satisfy Rule 702âs Daubert
reliability factors. Mr. Hampton, the district court observed, âhas not
attempted to explain in any fashion his methods, testing, peer review, rate
of error, independent research, et cetera.â R.1618.
We agree. These are clear requirements of the Federal Rules, see Fed.
R. Evid. 702(c)-(d), and the district courtâs adherence to them was not an
abuse of discretion.
III
We REVERSE the district courtâs grant of summary judgment to
UDC on Mr. Hamptonâs failure-to-accommodate claim and REMAND for
further proceedings. The district courtâs grants of summary judgment to
UDC on Mr. Hamptonâs claims alleging disparate treatment and retaliation
are AFFIRMED.
39
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 40
Robert Hampton v. Utah Department of Corrections, No. 21-4127
BACHARACH, J., concurring.
The Utah corrections department issues handguns to correctional
officers and prohibits them from using other kinds of handguns while on
duty. What if a correctional officer with a disability seeks an
accommodation to use a different type of handgun? Federal law might
require this accommodation if it wouldnât interfere with the essential
functions of the job. See Mason v. Avaya Commcâns, Inc., 357 F.3d 1114,
1124(10th Cir. 2004). But if the ability to safely use a department-issued handgun is an essential function of the job, the department could decline the requested accommodation. See Smith v. Blue Cross Blue Shield of Kan., Inc.,102 F.3d 1075, 1076
(10th Cir. 1996).
To determine whether a job function is essential, we have considered
a set of regulatory factors. 29 C.F.R. § 1630.2(n)(3); see, e.g., E.E.O.C. v. Picture People, Inc.,684 F.3d 981
, 986â87 (10th Cir. 2012); Hennagir v. Utah Depât of Corrs.,587 F.3d 1255, 1262
(10th Cir. 2009). The district court didnât consider these factors, and the parties donât ask us to do so. But in my view, we must still apply the regulatory factors. Under those factors, a reasonable factfinder could find that the ability to safely use a department-issued handgun is not an essential function of the job. So I agree with the majorityâs reversal of summary judgment on Mr. Robert Hamptonâs claim involving a failure to provide an accommodation. But Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 41 unlike the majority, I would rely on the regulatory factors, as we have in the past. See, e.g., Picture People, 684 F.3d at 986â87; see also Hawkins v. Schwanâs Home Serv., Inc.,778 F.3d 877, 894
(10th Cir. 2015)
(recognizing âthat we are bound to follow our own precedent and its
express incorporation of the EEOC regulationsâ).
The majority upholds the award of summary judgment on
Mr. Hamptonâs claims involving retaliation and discrimination. On these
claims, I agree with the majority both on the outcome and the rationale.
1. Utahâs correctional officers must use the same type of handgun.
Prior to 2014, the corrections departmentâs policy allowed officers to
use their personal handguns while on duty. In 2014, however, the State
audited the corrections department and recommended reconsideration of
this policy. The department responded by changing its policy to require
correctional officers to carry the handguns issued by the department.
The departmentâs remaining question was the type of handgun to be
issued. The department considered various brands and ultimately selected
Glock handguns. With that selection, the department issued Glock
handguns and prohibited correctional officers from carrying and using
other handguns while on duty.
2
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 42
2. Mr. Hampton obtains a job as a correctional official despite his
concern over the grip on Glock handguns.
With this prohibition in place, Mr. Robert Hampton applied for a job
with the corrections department. Under the existing policy, Mr. Hampton
had to obtain certification of his proficiency with a Glock handgun. This
requirement posed a challenge for Mr. Hampton. He had only two fingers
and a thumb on each hand, and the Glockâs grip was relatively large. Using
a handgun with a thinner grip would have been easier. But Mr. Hampton
obtained certification with a Glock and got the job.
3. Mr. Hamptonâs job sometimes required him to carry a Glock, so
he asked if he could use a different handgun.
Mr. Hamptonâs first role was with Utilityâa temporary position
involving rotation among various assignments. Some of these assignments
required officers to carry a handgun. And because of the departmentâs
policy, the handgun had to be a Glock. Though Mr. Hampton had obtained
certification with a Glock, he believed that a handgun with a slimmer grip
would be safer because he was missing two fingers on each hand. So he
asked if he could use a Springfield 1911. This request was rejected.
After the temporary Utility position ended, Mr. Hampton moved to a
permanent position as a Rover at the Timpanogos buildings. As a Rover,
Mr. Hampton did not need to carry a handgun for most of his shifts.
3
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 43
4. The corrections department fires Mr. Hampton, and he sues.
The department later fired Mr. Hampton for violating security
protocol. The firing led Mr. Hampton to sue the corrections department
under the Rehabilitation Act, claiming failure to accommodate his
disability, retaliation for requesting an accommodation, and discrimination
based on a disability. The district court granted summary judgment to the
department on all claims, and this appeal followed.
5. We consider de novo whether a triable fact-issue exists.
In deciding this appeal, we conduct de novo review over the grant of
summary judgment. Sinclair Wyo. Refin. Co. v. A&B Builders, Ltd., 989
F.3d 747, 765 (10th Cir. 2021). This review requires us to consider the
evidence and reasonable inferences in the light most favorable to
Mr. Hampton. Id.
6. A genuine dispute of material fact exists on whether the ability to
safely use a Glock was an essential function of the Utility job.
The majority reverses the grant of summary judgment on
Mr. Hamptonâs claim involving a failure to provide an accommodation. I
agree with this ruling, but my reasons differ from the majorityâs.
In reversing the grant of summary judgment, the majority concludes
that
ďˇ the issuance of a disability-neutral rule doesnât prevent
scrutiny,
4
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 44
ďˇ the district court shouldnât have relied solely on the
departmentâs policy, and
ďˇ the policyâs essential function is the safe use of a handgun.
Maj. Op. at 18â22.
My thinking is different: The overarching issue is whether the ability
to safely use a Glock is an essential function of the Utility job when the
employee is assigned to an armed position. To resolve the issue, we must
conduct a fact-intensive analysis based on the regulatory factors. Those
factors leave room for reasonable disagreement over the departmentâs
justification for insisting on use of a Glock (rather than another type of
handgun). Given that room for disagreement, a genuine dispute of material
fact exists on the reasonableness of Mr. Hamptonâs requested
accommodation.
a. Regulatory factors
For liability under the Rehabilitation Act on his failure-to-
accommodate claim, Mr. Hampton needed to show that
ďˇ he had suffered from a disability, had been otherwise qualified
to serve as a correctional officer, and had requested a plausibly
reasonable accommodation; and
ďˇ the department had refused to provide a plausibly reasonable
accommodation.
Aubrey v. Koppes, 975 F.3d 995, 1005 (10th Cir. 2020). The question here
is whether Mr. Hamptonâs requested accommodation was plausibly
5
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 45
reasonable. The accommodation wouldnât be reasonable if it eliminated an
essential function of the job. Smith v. Blue Cross Blue Shield of Kan., Inc.,
102 F.3d 1075, 1076 (10th Cir. 1996).
The requested accommodation involved substitution of a Springfield
1911 for a Glock. The resulting question is whether this substitution would
have interfered with an essential function of the job. The department urges
us to answer yes, arguing that use of a Glock was an essential job function.
Mr. Hampton urges us to answer no, arguing that use of a Glock was not
essential because he could do his job just as well with a Springfield 1911
rather than a Glock.
Mr. Hampton bears the burden of showing that the contested job
function is not essential. Mason v. Avaya Commcâns, Inc., 357 F.3d 1114,
1119(10th Cir. 2004). A function is considered âessentialâ if the duty is fundamental to the employeeâs performance of the job. Davidson v. Am. Online, Inc.,337 F.3d 1179, 1191
(10th Cir. 2003).
To determine whether Mr. Hampton satisfied that burden, we have
recognized at least seven nonexhaustive factors:
1. the employerâs judgment on the necessity of particular job
functions,
2. any written job descriptions prepared before the employer
advertised or interviewed applicants for the job,
3. the time spent performing the function,
6
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 46
4. the consequences of allowing the plaintiff to avoid the
function,
5. the terms of a collective bargaining agreement,
6. the experience of past workers in the job, and
7. the experience of current workers with similar jobs.
Hennagir v. Utah Depât of Corrs., 587 F.3d 1255, 1262(10th Cir. 2009);29 C.F.R. § 1630.2
(n)(3).
The parties didnât identify these factors, and the district court didnât
apply them. Understandably, the majority follows the partiesâ approaches
and doesnât apply these factors. In my view, however, we must apply the
governing factors even when theyâre overlooked by the parties. Hawkins v.
Schwanâs Home Serv., Inc., 778 F.3d 877, 894(10th Cir. 2015); see Elder v. Holloway,510 U.S. 510
, 511â12 (1994) (stating that an appellate court should take notice of relevant legal precedent even when the parties overlook it); accord Gonzalez v. Lee Cnty. Housing Auth.,161 F.3d 1290
,
1303 n.39 (11th Cir. 1998) (stating that the court of appeals bears an
obligation to apply the pertinent regulation sua sponte when the parties
failed to proffer the regulation as relevant legal authority).
In applying these factors, we must decide how to determine whether a
job function is essential. Weâve sometimes regarded this inquiry as mixed,
containing both a legal and factual component. See Mason v. Avaya
Commcâns, Inc., 357 F.3d 1114, 1122 (10th Cir. 2004) (âThe question of
7
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 47
whether an employee can perform the essential functions of her job is a
mixed question of law and fact.â). Other times, weâve said that the inquiry
is factual. See Davidson v. Am. Online, Inc., 337 F.3d 1179, 1191(10th Cir. 2003) (âDetermining whether a particular function is essential is a factual inquiry.â). But even when weâve described the inquiry as mixed, weâve acknowledged that the inquiry is primarily factual. Rascon v. US W. Commcâns, Inc.,143 F.3d 1324, 1333
(10th Cir. 1998), overruling recognized on other grounds, Hermann v. Salt Lake City Corp.,21 F.4th 666, 677
(10th Cir. 2021); accord Tuck v. HCA Health Servs. of Tenn.,7 F.3d 465, 471
(6th Cir. 1993) (stating that issues involving the essential functions of a job âare primarily factual issuesâ). So even if we regard the inquiry as mixed, the determination of the jobâs essential functions would primarily involve facts rather than law. Given the factual nature of the inquiry, disagreements over a jobâs essential functions are typically not suitable for summary judgment. Rorrer v. City of Stow,743 F.3d 1025, 1039
(6th Cir. 2014).
On this factual inquiry, the parties have not addressed the regulatory
factors. But the partiesâ arguments fit two of the factors: (1) the
employerâs assessment and (2) the consequences of not requiring
Mr. Hampton to perform the function.
8
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 48
b. The employerâs assessment
We typically defer to the employer when it specifies requirements
that are job-related, uniformly enforced, and consistent with business
necessity. Hawkins v. Schwanâs Home Serv., Inc., 778 F.3d 877, 890(10th Cir. 2015); Davidson v. Am. Online, Inc.,337 F.3d 1179, 1191
(10th Cir.
2003). And the undisputed evidence shows that the department deemed use
of a Glock as an essential function of the job.
The requirement is indisputably job-related. The department adopted
this requirement following an audit. In the audit, officials had pointed out
that unlike six other corrections departments in neighboring states
(Arizona, Colorado, Idaho, Montana, Nevada, and Wyoming), Utahâs
corrections department allowed staff members to use their personal guns.
Appellantâs Appâx vol. 2, at 506. The audit flagged advantages and
disadvantages of allowing staff members to use their own guns and
recommended that the corrections department âconsider the
appropriateness of using personal weapons as a duty weapon.â Id. at 506â
07.
The corrections department adopted this recommendation and
reconsidered the policy. In reconsidering the policy, officials found that
staff members had been ordering their own preferred guns, leading to
disparities in quality and creating a supply of guns that no one was using
or inspecting. Appellantâs Appâx vol. 5, at 1336. This finding led officials
9
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 49
to change the policy, providing a selection of guns that every armed officer
would use. Id.For the officers using handguns, officials decided on Glocks because they were already being used in training.Id.
The new written policy stated that
ďˇ every officer had to use a department-issued handgun as the
primary duty weapon and
ďˇ the only department-issued handguns would be Glocks.
Appellantâs Appâx vol. 2, at 454, 459. The policy was not only job-related,
but also uniformly enforced, for the corrections department has never made
an exception to the requirement. 1
The policy also stemmed from the corrections departmentâs
assessment of business necessity. We might differ in how we would
1
In district court, Mr. Hampton argued that (1) officers could use
whatever gun they wanted as a backup weapon and (2) Springfield 1911
guns were in the armory and issued for employee use.
The first argument stemmed from a misunderstanding of the
departmentâs policy. Officers could use a different kind of gun when
working as a law-enforcement officerânot as a correctional officer, like
Mr. Hampton. And even law-enforcement officers could use only
department-issued guns as backup weapons. (The department didnât issue
the Springfield 1911 gun to any law-enforcement officer or correctional
officer.)
The second argument stemmed from a misunderstanding of the
evidence. The department had some Springfield 1911s, but provided them
only for competitionsânot for officersâ use while on duty. Appellantâs
Appâx vol. 5, at 1300â01.
10
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 50
evaluate a policy that confines officials to one brand of handgun. But the
department didnât act arbitrarily in adopting the requirement. The
department instead followed the auditorsâ recommendation by studying the
pros and cons of a requirement that would create uniformity.
Given these circumstances, no reasonable factfinder could question
the departmentâs reliance on its own sense of business necessity in
responding to the auditorsâ recommendation. See Conroy v. N.Y. State
Depât of Corr. Servs., 333 F.3d 88, 98 (10th Cir. 2003) (stating that courts
âwill readily find a business necessity . . . when the employer can identify
legitimate, non-discriminatory reasons to doubt the employeeâs capacity to
perform his or her dutiesâ). So this factor supports use of a Glock as an
essential function of the job.
c. The consequences of not requiring Mr. Hampton to perform
the function
Mr. Hampton argues that it would be safer for him to use a
Springfield 1911 rather than a Glock, and a reasonable factfinder could
credit that argument. Mr. Hampton did obtain certification with a Glock,
but he presented evidence that his disability made it safer for him to use a
Springfield 1911 because of its slimmer grip. That evidence suggests that
the requested accommodation might have improved Mr. Hamptonâs ability
to safely perform his job, undercutting the corrections departmentâs
insistence on safety as a reason to require use of a Glock.
11
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 51
On the other hand, the department presented evidence that the Glock-
only system improved the safe use of firearms in four ways:
1. It was easier to determine if a correctional officer was carrying
a department-issued handgun.
2. It was easier to confirm that correctional officers were properly
trained on their handguns.
3. It was easier to certify proper maintenance of the handguns.
4. If one staff member needed a weapon in an emergency, another
officer could provide the staff member with an extra handgun
or magazine.
Mr. Hamptonâs use of a Springfield 1911 could thus
ďˇ undercut safety and
ďˇ create a burden on the corrections departmentâs effort to
confirm compliance with the policy.
The partiesâ disagreement turns on a factual dispute, and the district
court needed to view the evidence favorably to Mr. Hampton. See Part 5,
above. With that favorable view, a reasonable factfinder could regard
inflexible reliance on Glocks as an impediment to safety in light of Mr.
Hamptonâs need for a slimmer grip. 2
2
The department presents an alternative argument for affirmance
based on a defense of undue hardship. The district court did not address
this defense, and the majority correctly declines to address it. But in
making this argument, the department contends that the requested
accommodation would require retraining of 80 firearms instructors and 45
armorers. This contention could bear on what was an essential function of
the job. For example, if officers were allowed to use different weapons, the
department might incur a greater burden to retrain personnel. See Milton v.
Scrivner, Inc., 53 F.3d 1118, 1124â25 (10th Cir. 1995). But the department
12
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 52
d. The remaining factors
The partiesâ arguments do not easily fit the remaining factors, such
as the time spent performing the function 3 or the experience of past or
current workers in the job. So the court need not address these factors.
* * *
If a factfinder views the evidence favorably to Mr. Hampton, the
regulatory factors would cut different ways. The departmentâs judgment on
the importance of uniformity weighs heavily. Hennagir v. Utah Depât of
Corrs., 587 F.3d 1255, 1262(10th Cir. 2009). But this factor isnât dispositive. Adair v. City of Muskogee,823 F.3d 1297, 1308
(10th Cir. 2016); Davidson v. Am. Online, Inc.,337 F.3d 1179, 1191
(10th Cir. 2003).
The department relies partly on the safety resulting from uniformity
in the type of handgun used, but a factfinder could reasonably conclude
that an exception for Mr. Hampton would enhance safety in light of the
slimmer grip on a Springfield 1911.
doesnât base its argument involving essential functions on the burden of
retraining instructors or armorers.
3
Though Mr. Hampton worked in the Utility role, he had at least 79
opportunities to carry a firearm. Appellantâs Appâx vol. 6, at 1484. But it
is not obvious how this number matters, for there is no numerical cut-off
on when a job function becomes essential. And the parties do not address
the significance of the number of times that Mr. Hampton could carry a
firearm. So we need not consider how often Mr. Hampton needed to carry a
firearm.
13
Appellate Case: 21-4127 Document: 010110962271 Date Filed: 12/04/2023 Page: 53
Given the presence of factors cutting both ways, a triable fact-issue
exists on whether use of a Glock is an essential function of the job. See
Skerski v. Time Warner Cable Co., 257 F.3d 273, 280â283 (3d Cir. 2001)
(concluding that summary judgment wasnât available because the factors
cut both ways). If use of a Glock isnât an essential function,
Mr. Hamptonâs proposed accommodation could be considered reasonable.
The district court should thus have denied the departmentâs motion for
summary judgment on this claim.
14