Beard v. Brinks Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:22-cv-01850-WJM-SBP
ASHLEY BEARD,
Plaintiff,
v.
BRINK’S INC.,
Defendant.
RECOMMENDATION ON MOTIONS FOR SUMMARY JUDGMENT
Susan Prose, United States Magistrate Judge
Plaintiff Ashley Beard, who appears before the court pro se, alleges claims of
employment discrimination on the basis of disability under the Americans with Disabilities Act
(“ADA”), as amended, 42 U.S.C. §§ 12101, et seq., as well as discrimination on the basis of
color under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq.
See ECF No. 1 (“Complaint”) at 3. This matter comes before the court on Motions for Summary
Judgment filed by both Defendant Brink’s, ECF No. 76 (“Brink’s Motion”), and Ms. Beard, ECF
No. 78 (“Ms. Beard’s Motion”). The parties each filed responses to the respective Motions but
only Brink’s filed a reply. ECF No. 85 (Brink’s response); ECF No. 86 (Ms. Beard’s response);
ECF No. 92 (Brink’s Reply). The Motions have been referred to the undersigned for a
recommendation pursuant to 28 U.S.C. § 636(b). See ECF No. 77; see also ECF Nos. 4, 35.
Having carefully reviewed the parties’ briefing and the applicable law, this court
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respectfully RECOMMENDS that Brink’s Motion for Summary Judgment be granted in part
and denied in part and that Ms. Beard’s Motion for Summary Judgment be denied.
BACKGROUND
I. 	Undisputed Facts
This court draws the following material facts from the record and considers them
undisputed unless otherwise noted.
This case flows from two work-related back injuries Ms. Beard sustained in 2019.1 In
April 2017, Ms. Beard began working for Dunbar Armored, Inc., and later became a Brink’s
employee in July 2019 after Brink’s acquired Dunbar. Beard Dep. 51:6, 53:21-54:4. During this
time, Ms. Beard primarily served as a Vault Clerk and Driver, which required her to be able to
lift, carry, and push at least 50 pounds while transporting currency and other valuable cargo. ECF
No. 76-2 at 1-4. Ms. Beard says that, prior to her injuries, she “had no difficulties carrying out
[these] duties.” Ms. Beard’s Response at 6.
A. 	March and November 2019 Injuries
Ms. Beard first injured her back in March 2019 while trying to open a truck door. Beard
Dep. 61:1-8. She saw a workers’ compensation physician who issued her temporary work
restrictions preventing her from lifting more than 10 pounds or pushing or pulling more than 20
1 While the court acknowledges that Ms. Beard’s Motion does not comply with Judge Martinez’s
Practice Standards—as Brink’s points out, see Brink’s Response at 2—because she proceeds pro
se, this court affords her papers and filings a liberal construction. Haines v. Kerner, 404 U.S.
519, 520-21 (1972). But the court cannot and does not act as her advocate, Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991), and applies the same procedural rules and substantive law
to Ms. Beard as to a represented party, see Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.2
(10th Cir. 2008).
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pounds for more than three hours per day. Id. 62:3-21; ECF No. 76-2 at 9. Ms. Beard was
temporarily reassigned to a position as a turret guard, which allowed her to work within these
restrictions. Beard Dep. 62:15-64:10; see ECF No. 76-2 at 10. Ms. Beard worked in this
arrangement until April 12, 2019, when her physician cleared her for regular activity, and she
returned to her position as a Vault Clerk and Driver. Beard Dep. 62:15-64:10; ECF No. 76-2
at 11.
Ms. Beard reinjured her back on November 1, 2019, while lifting a bag of coins. Beard
Dep. 64:15-65:23, 68:5-13. On November 4, 2019, Ms. Beard’s physician again issued
restrictions that she not lift more than 10 pounds and limited her to working no more than six
hours per day. Id. 69:18-24; ECF No. 76-2 at 12. Ms. Beard’s supervisor, Kristine O’Neill,
assigned her to a temporary position as a building turret guard that would accommodate these
restrictions, and Ms. Beard accepted this position on November 5, 2019. ECF No. 76-2 at 13-16.
On November 13, 2019, Ms. Beard’s physician issued more stringent lifting restrictions.
Beard Dep. 74:20-75:8; ECF No. 76-2 at 17. On January 14, 2020, her physician shortened the
amount of time she could work to four hours per day. ECF No. 76-2 at 18. Then, on April 8,
2020, her physician issued a total restriction preventing her from working at all. Id. at 19.
Following this, Ms. Beard went on disability leave. Beard Dep. 84:2-86:20. O’Neill told Ms.
Beard to provide updates on her status, which Ms. Beard did periodically for the next year or so.
Id. 85:5-9, 88:1-21.
B. 	April 2021 “Termination”
Then, on March 19, 2021, Absence Manager Crystal Rice-Minor, a Brink’s human
resources official, sent Ms. Beard a letter asking about her potential timeline for returning to
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work. ECF No. 76-2 at 21 (“March 2021 Letter”). In that letter, Rice-Minor explained that
Brink’s was “unable to provide [Ms. Beard] with an indefinite leave of absence, Brink’s policies
typically limit leaves to a maximum of 6 months, absent the approval of a reasonable
accommodation to the contrary.” Id. The letter then encouraged Ms. Beard to apply for other
positions on Brink’s website. Id. Additionally, the letter advised Ms. Beard that “if we do not
hear from you prior to April 19, 2021, regarding discussing potential opportunities for your
return to active employment or other potential accommodations of your circumstances, Brink’s
will be moving forward with the administrative termination of your employment on
April 19, 2021.” Id.
In response to this letter, Ms. Beard called Rice-Minor and informed her that she could
not provide a definite answer as to when she could return to work. Beard Dep. 94:8-23.
According to Ms. Beard, Rice-Minor replied that she would speak with the insurance company
and get back to her. Id. 95:14-20.
Around this time, Ms. Beard also reached out to O’Neill and told her: “Everything looks
well on my MRI. I’m still working through PT. I should be able to return to work soon with
restrictions. I’m not sure of the date. I also received [March 2021 Letter] from HR.” ECF No. 1-3
at 1. O’Neill responded: “I don’t think they’ll let you return with restrictions.” Id.
Then, on April 19, 2021, Rice-Minor sent Ms. Beard a letter stating that her employment
would be terminated effective April 26, 2021. ECF No. 76-2 at 23 (“April 2021 Letter”). The
letter stated: “As we advised you in our [the March 2021 Letter] pursuant to Brink’s Policy your
employment with Brink’s is hereby terminated effective April 26, 2021. Please contact your
Branch to return all Brink’s issued equipment and property that you may have in your possession
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as soon as possible. Thank you for your service to our company and please don’t hesitate to
contact me with questions or concerns . . . .” Id.
Shortly thereafter, Ms. Beard called Rice-Minor. Beard Dep. 100:10-15. Rice-Minor
asked Ms. Beard if she knew when she would return to work, and when Ms. Beard replied that
she did not, Rice-Minor said that there was nothing that she could do because of Brink’s leave
policy. Id. 100:19-101:3. Soon after, Ms. Beard went into Brink’s to return her equipment. See
id. 101:9-11. It was around this time that O’Neill and Patrick Marquez—a district manager—
offered to serve as a reference or to write letters of recommendation for Ms. Beard. Id. 101:14-
17; ECF No. 1-3 at 4.
C. 	May 2021 Release and June Scheduling
In mid-May 2021, Ms. Beard had a follow-up with her workers’ compensation physician.
At this appointment, the physician released her from all restrictions. See ECF No. 76-2 at 25-26
(“May 2021 Release”). Ms. Beard explained that this was at her request because, as she puts it,
“I was already terminated from that position that I needed those restrictions for. So I asked
personally not to have those permanent restrictions because I wasn’t going back to work.” Beard
Dep. 106:15-18.
Like previous visits, Brink’s received a notice following Ms. Beard’s appointment. This
time, though, the notice showed that Ms. Beard had been cleared for work. On or around May
19, O’Neill reached out to Ms. Beard to ask if she was interested in returning to Brink’s, and, if
so, to reach out to Rice-Minor. Id. 106:1-4. Ms. Beard told O’Neill that she was interested in
returning to work but that she would have restrictions. Id. 106:4-6.
Afterward, Rice-Minor reached out to Ms. Beard and asked if she was ready to return to
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work. See id. 105:9-20. Then on May 21, Rice-Minor sent an email stating: “[April 2021 Letter]
was sent in error. Your employment is still active with Brink’s Incorporated. We have a full duty
release as of May 14, 2021. Are you returning to work?” ECF No. 76-2 at 27.
Ms. Beard responded: “I was ready and willing to return back to work within my
restrictions. But Brink’s decided to terminate me effective April 26, 2021. At that date, I was no
longer a Brink’s employee. And any attempt to overturn that decision is unlawful.” Id. at 28.
Minutes later, Rice-Minor asked Ms. Beard to give her a call, but it is unclear whether Ms. Beard
did so. Id.
It appears, however, that Ms. Beard and Rice-Minor did have a conversation at one point,
during which Ms. Beard “talked to [Rice-Minor] about returning to work after [June] 15th, after I
had my restrictions exactly. Because she asked what are my exact restrictions, and can she have
those on paper. I’m like sure. I have an appointment with Sacha [a workers’ compensation
physician] on the 15th.” Beard Dep. 115:9-14. Ms. Beard claims that Rice-Minor verbally agreed
to Ms. Beard returning to work after she had seen Dr. Sacha on June 15. Id. 110:12-21.
On June 3, 2021, O’Neill left Ms. Beard a voicemail and text message informing her that
she would be on the work schedule beginning on Monday, June 7, 2021, and asked her to call or
text her back to confirm. See ECF No. 1-3 at 2-3. According to Ms. Beard’s testimony, O’Neill
told her that Human Resources “was making her put [Ms. Beard] on the schedule” for June 7
even though Brink’s knew that Ms. Beard “was going to get those restrictions put back in place”
on June 15 when she was set to see Dr. Sacha for a follow-up appointment. Beard Dep. 109:16-
25, 110:12-21. Ms. Beard did not report to work on June 7.
On June 15, 2021, Dr. Sacha evaluated Ms. Beard and placed her on the following
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restrictions: No lifting over 10 pounds, bending and twisting on an occasional basis, and no
crouching or crawling. ECF No. 1-2 at 2. Brink’s did not receive notice of these restrictions
because Ms. Beard’s workers’ compensation case had been closed as a result of the May 2021
Release. Brink’s Motion at 10; ECF No. 76-2 at 33. In his report, Dr. Sacha said that Ms. Beard
“does want permanent restrictions. She is going to look for a new sedentary type job. She does
not feel that she can do her prior job.” ECF No. 76-2 at 33.
Next, on June 30, 2021, Rice-Minor sent Ms. Beard a letter:
On May 18, 2021, you were released by Dr. Cava to return to active employment.
As of date of this letter, you have not reported to work. We do not show you as
currently being on an approved leave of absence and we have not heard from you
regarding your intention to return to your former position, potential accommoda-
tions of your circumstances or to otherwise address your employment status with
Brink’s.
We have attempted to reach you via email and phone: However, you have been
unresponsive to our calls and emails.
As you are not under a current approved Leave of Absence un [sic] Brink’s policy,
your absences following the expiration of your approved leave of absence are con-
sidered as unexcused and, if we do not hear from you by Wednesday, July 7, 2021,
the company reserves the right to move forward with disciplinary action, to include
the potential termination of your employment.
ECF No. 1-5 at 3. On July 6, 2021, Ms. Beard emailed Rice-Minor, stating that Brink’s
terminated her “on no fault of [her] own” and that she would like to “speak with a District
Manager via email.” ECF No. 85-2 at 14. Rice-Minor responded later that day, asking Ms. Beard
to call her. Id. at 15–16. She sent a similar email on July 22, 2021. Id. Ms. Beard and Brink’s
agree that Ms. Beard did not call Rice-Minor on July 6 and that Ms. Beard ceased all
communications with Brink’s thereafter. Brink’s Motion at 11; ECF No. 78-2 at 50. Ms. Beard
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says that she was waiting on Rice-Minor to send contact information for someone else she could
speak with. Beard Dep. 118:24-119:2.
Even though Ms. Beard’s last day working at Brink’s was in April 2020, she continued to
be listed as an employee in Brink’s systems until December 11, 2023, when she asked Brink’s to
terminate her employment so that she could access her 401(k) funds. Brink’s Motion at 6, 12.
Ms. Beard reports that she did not work until March 2022 and, since then, has worked as a
security guard for several different employers. ECF No. 48 at 4-5; see Beard Dep. 24:22-25:5.
D. 	EEOC Charge
On July 22, 2021, Ms. Beard filed a charge of discrimination with the Colorado Civil
Rights Commission (CCRC) and the Equal Employment Opportunity Commission (EEOC),
alleging discrimination on the basis of disability. See ECF No. 1-1. On February 22, 2022,
CCRC issued its determination of no probable cause. Id. at 9. Ms. Beard appealed, and on March
25, 2022, CCRC affirmed its decision. Id. at 7-8. On May 10, 2022, EEOC sent Ms. Beard its
determination that the dismissal of her charge by CCRC was appropriate and consistent with
EEOC’s guidance and issued her a Notice of Right to Sue. Id. at 1-2.
II. 	Procedural History
Ms. Beard timely filed this lawsuit on July 26, 2022. Originally, in addition to Brink’s,
Ms. Beard sued O’Neill and Rice-Minor but later voluntarily dismissed both individuals. ECF
Nos. 23, 28. Ms. Beard brings claims under both Title VII and the ADA. Specifically, she alleges
claims of failure to accommodate, discrimination, hostile work environment, and retaliation
under the ADA. Complaint at 9-14. She also brings a hostile work environment claim under Title
VII, alleging racial discrimination. Id. at 10.
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In its motion for summary judgment, Brink’s argues that it is entitled to summary
judgment on Ms. Beard’s Title VII claim, as well as any claim under the ADA based on events
prior to March 2021, because she failed to exhaust her administrative remedies. And for the
claims that were properly exhausted, it argues Ms. Beard cannot show that in May/June 2021,
she was qualified for the positions available to her or that she requested reasonable
accommodations. Additionally, it argues that Ms. Beard’s failure to return to work despite the
May 2021 Release, her failure to provide any written restrictions from any doctor in May/June
2021 for it to consider, and her “dogged” refusal to engage in the interactive process with Rice-
Minor are all legitimate non-discriminatory grounds for its actions. Brink’s Motion at 20.
In her motion for summary judgment, Ms. Beard generally recounts her claims and
provides her view of the facts. Furthermore, she alleges that Rice-Minor’s “refusal to answer
questions . . . during her deposition . . . is a deliberate attempt to control the flow of information
and hinder Plaintiff’s ability to obtain relevant evidence . . . undermin[ing] the principles of
transparency and fairness essential to the discovery process[.]” Ms. Beard’s Motion at 1.
LEGAL STANDARDS
Summary judgment may be granted only “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal
Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). At the summary judgment stage, a judge does not
“weigh the evidence and determine the truth of the matter,” but rather “determine[s] whether
there is a genuine issue for trial.” Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986). If the
evidence presents a disagreement that a jury must decide because the law itself does not resolve
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it, then there is a “genuine issue for trial.” Id. at 248-49. A fact is “material” if it “might affect
the outcome of the suit under the governing law;” a factual dispute is “genuine” if “a reasonable
jury could return a verdict for the nonmoving party.” Id. at 248; see also First Church of
Nazarene of Colorado Springs, Colorado v. Guideone Mut. Ins. Co., No. 19-cv-02748-NYW,
2021 WL 3549426 at *3 (D. Colo. Aug. 10, 2021). If no “rational trier of fact” could return a
verdict for the nonmoving party, there is no “genuine issue for trial,” and the court must enter
summary judgment for the movant. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (citation omitted).
At the summary judgment stage, this court views all evidence in the light most favorable
to the nonmoving party. EEOC v. C.R. Eng., Inc., 644 F.3d 1028, 1037 (10th Cir. 2011). But the
nonmovant “must set forth specific facts showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 256. “Mere allegation or denials of [the] pleading” are insufficient to
defeat a motion for summary judgment. Id.; see also Bones v. Honeywell Int’l, Inc., 366 F.3d
869, 875 (10th Cir. 2004) (“To defeat a motion for summary judgment, evidence, including
testimony, must be based on more than mere speculation, conjecture, or surmise.”); 10B Charles
Alan Wright, et al., Federal Practice and Procedure § 2738 (4th ed. 2024) (“[T]he mere
reargument of a party’s case or the denial of an opponent’s allegations will be disregarded.”).
This court may enter summary judgment only if the movant carries its burden of
production under Rule 56 of the Federal Rules of Civil Procedure. See Tesone v. Empire Mktg.
Strategies, 942 F.3d 979, 994 (10th Cir. 2019) (citing Celotex, 477 U.S. at 330). If the burden of
persuasion at trial would be on the nonmoving party, the movant may carry its burden of
production by providing “affirmative evidence that negates an essential element of the
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nonmoving party’s claim” or by “demonstrat[ing] . . . that the nonmoving party’s evidence is
insufficient to establish an essential element of the nonmoving party’s claim.” Tesone, 942 F.3d
at 994 (quoting Celotex, 477 U.S. at 331). If the movant carries its burden, the burden then shifts
to the nonmovant to “set forth specific facts showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 248. If the nonmovant fails to do so, this court must enter summary
judgment for the moving party. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 322.
ANALYSIS
I. 	Brink’s Motion for Summary Judgment
The court first addresses whether the administrative prerequisites to suit have been
satisfied for each claim. It then turns to the parties’ arguments regarding the merits of Ms.
Beard’s claims.
A. 	Unexhausted and Untimely Claims: Hostile Work Environment
Ms. Beard raises hostile work environment claims under both Title VII and the ADA.
“An employee wishing to challenge an employment practice under Title VII must first ‘file’ a
‘charge’ of discrimination with the EEOC.” Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1163
(10th Cir. 2007) (citing 42 U.S.C. § 2000e-5(e)(1)). The same is true for claims under the ADA.
Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1183 n.7 (10th Cir. 2018) (citing 42 U.S.C.
§ 12117(a)). A plaintiff is limited to bringing suit on those discriminatory practices raised in her
EEOC charge. Smith v. Cheyenne Ret. Invs. L.P., 904 F.3d 1159, 1164 (10th Cir. 2018)
(emphasizing that although a court “liberally construes” the allegations in a charge, “the charge
must contain facts concerning the discriminatory and retaliatory actions underlying each claim”)
(quoting Jones v. U.P.S., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007) (emphasis in original)).
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The charge must also have been timely filed. “[A]n employee must file a charge of
discrimination with the EEOC within 180 days of the alleged unlawful employment practice
giving rise to the charge unless the employee has initially instituted proceedings with a State or
local agency, in which case the employee has 300 days to file her EEOC charge.” Salemi v. Colo.
Pub. Emp. Ret. Ass’n, 747 F. App’x 675, 688 (10th Cir. 2018) (footnote omitted) (citing
42 U.S.C. § 2000e-5(e)(1)). “Each discrete incident of discriminatory or retaliatory treatment
constitutes its own ‘unlawful employment practice’ for which administrative remedies must be
exhausted.” Id. (quoting Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003) (cleaned up)).
The 300-day limitation period begins on “the date the employee is notified of an adverse
employment decision by the employer.” Proctor v. United Parcel Serv., 502 F.3d 1200, 1206
(10th Cir. 2007) (citation and internal quotation marks omitted). When a complaint alleges
multiple discrete acts, the limitations period runs separately for each act. Davidson v. Am.
Online, Inc., 337 F.3d 1179, 1185 (10th Cir. 2003). And so, with respect to claims based on
discrete acts of discrimination or retaliation, the court may not consider incidents occurring more
than 300 days prior to a plaintiff’s EEOC charge—in this case, September 25, 2020, which was
300 days before Ms. Beard filed her charge on July 22, 2021.2 Salemi, 747 F. App’x at 688;
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114-15 (2002).
Hostile work environment claims, however, are subject to the continuing violation
doctrine, which allows a plaintiff to recover “for discriminatory acts that occurred prior to the
statutory limitations period if they are part of a continuing policy or practice that includes the act
2 Accordingly, the court has only considered allegations mentioned in Ms. Beard’s Charge that
occurred between September 25, 2020, and July 22, 2021.
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or acts within the statutory period.” Davidson, 337 F.3d at 1183 (citation and internal quotation
marks omitted)). “A hostile work environment claim is ‘composed of a series of separate acts
that collectively constitute one unlawful employment practice.’” Throupe v. Univ. of Denver,
988 F.3d 1243, 1251 (10th Cir. 2021) (quoting Morgan, 536 U.S. at 117). Hostile work
environment claims “are based on the cumulative effect of individual acts” and, therefore,
“cannot be said to occur on any particular day.” Morgan, 536 U.S. at 115. Accordingly, “the
entire time period of the hostile environment may be considered by a court for the purposes of
determining liability,” provided that at least one act “contributing to the [hostile work
environment claim] occur[red] within the filing period.” Id. at 117.
To begin with the Title VII claim alleging a hostile work environment based on race, Ms.
Beard makes no mention of race discrimination in her EEOC Charge. ECF No. 1-1. Her
complete silence on that score would have allowed no EEOC investigation of her race claim to
“reasonably grow out of the charge[.]” See Smith, 904 F.3d at 1164. That omission alone entitles
Brink’s to judgment as a matter of law on this claim.3
Brink’s is also entitled to summary judgment on Ms. Beard’s hostile work environment
claim under the ADA. Ms. Beard had not been in a Brink’s work environment since April 2020;
indeed, she acknowledges that the disability-based harassment she claims to have endured
occurred before April 2020. Beard Dep. 143:6-25, 144:1-2. By definition, then, no hostile act in
her work environment could have occurred within the 300-day EEOC charge window, which
3 Even if the charge had raised the issue of a racially hostile work environment, any claim based
on those allegations would be time-barred. There is no dispute here that the conduct alleged to be
racially discriminatory occurred no later than April 2020—well before the exhaustion window.
Beard Dep. 143:19-144:2.
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commenced on September 25, 2020. Morgan, 536 U.S. at 117. Ms. Beard’s hostile work
environment claim based on disability is time-barred.
For these reasons, this court respectfully RECOMMENDS that Brink’s Motion for
Summary Judgment be granted in part, insofar as it seeks summary judgment summary
judgment on Ms. Beard’s hostile work environment claims under both Title VII and the ADA.
B. 	Failure to Accommodate Ms. Beard’s Disability
Ms. Beard alleges that Brink’s discriminated against her on the basis of disability by not
making a reasonable accommodation for her known disability.4 The ADA prohibits a “covered
entity” from discriminating “against a qualified individual on the basis of disability in regard to
job application procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of employment.”
42 U.S.C. § 12112(a). The ADA defines “discriminate against a qualified individual on the basis
of disability” to include “not making reasonable accommodations to the known physical or
mental limitations of an otherwise qualified individual with a disability . . . unless [the employer]
can demonstrate that the accommodation would impose an undue hardship on the operation of
the business of [the employer].” Id. § 12112(b)(5)(A).
To establish a prima facie failure-to-accommodate claim, Ms. Beard must show that:
(1) she was disabled; (2) she was otherwise qualified; (3) she requested a plausibly reasonable
accommodation; and (4) Brink’s refused to accommodate her disability. Aubrey v. Koppes,
4 As discussed further below, under the ADA, a plaintiff may bring both a failure to
accommodate claim and a disability discrimination claim based on a failure to accommodate. See
Lincoln, 900 F.3d at 1204.
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975 F.3d 995, 1005 (10th Cir. 2020) (citing Lincoln, 900 F.3d at 1204). If Ms. Beard can make
this showing—which “is not onerous,” id. at 1014—the burden then shifts to Brink’s “to present
evidence either (1) conclusively rebutting one or more elements of [her] prima facie case or
(2) establishing an affirmative defense, such as undue hardship or one of the other affirmative
defenses available to the employer.” Lincoln, 900 F.3d at 1204 (internal quotation marks
omitted). If Brink’s presents evidence satisfying either point, summary judgment in its favor will
be appropriate unless Ms. Beard “‘presents evidence establishing a genuine dispute regarding the
affirmative defenses and/or rehabilitates any challenged elements of . . . her prima face case
sufficiently to establish at least a genuine dispute of material fact as to such challenged
elements.’” Punt v. Kelly Servs., 862 F.3d 1040, 1050 (10th Cir. 2017) (quoting Smith v. Midland
Brake, Inc., 180 F.3d 1154, 1179 (10th Cir. 1999)).
To return to the elements of Ms. Beard’s prima facie case, she has succeeded in making
her four-part showing.
1. 	Disabled individual
This element is not at issue. Brink’s concedes, for purposes of summary judgment, that
Ms. Beard is disabled for purposes of the ADA. Brink’s Motion at 15.
2. 	Otherwise qualified individual
Regarding the second element of the prima facie failure-to-accommodate claim, the ADA
prohibits a “covered entity” from “discriminat[ing] against a qualified individual on the basis of
disability.” 42 U.S.C. § 12112(a). “The term ‘qualified individual’ means an individual who,
with or without reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires.” 42 U.S.C. § 12111(8) (emphasis
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added).
At the outset, the court notes that the summary judgment record is marked by a lack of
clarity on several points: (1) what position Brink’s had offered Ms. Beard in May/June 2021, and
(2) the extent to which her restrictions may have prevented her from carrying out the essential
functions of that position. As for the latter point, though, it is undisputed that, after June 15,
2021, Ms. Beard was restricted by her physician to no lifting over 10 pounds, limited bending
and twisting, and no crouching or crawling. ECF No. 1-2 at 2. And the record reflects no dispute
that Ms. Beard had ably performed her work for Brink’s in the past. She had worked as a turret
guard—under restrictions similar to those she received in June 2021—with nothing to indicate
that she failed to carry out the essential functions of that position. Notably, too, Ms. Beard’s
supervisors offered to be a reference for her when they thought that she had been let go.
Still, Brink’s argues that Ms. Beard was not qualified. Its argument hinges on the fact that
Dr. Sacha wrote in his notes from his June 15, 2021 appointment that Ms. Beard had said that
“she does want permanent restrictions. She is going to look for a new sedentary type job. She
does not feel that she can do her prior job.” ECF No. 76-2 at 33. Additionally, Brink’s points to
Ms. Beard’s deposition testimony, where she is asked about Dr. Sacha’s notes and does not fully
deny what Dr. Sacha recounted. See Brink’s Motion at 10 (citing Beard Dep. at 121:9-13,
121:23-122:19, 123:6-18).
Whether or not Dr. Sacha’s notes and Ms. Beard’s statements are persuasive evidence for
Brink’s to highlight at trial, they do entitle it to judgment as a matter of law. The Tenth Circuit
Court of Appeals recently addressed a very similar situation, in which the employer argued that
the plaintiff’s claimed reasonable accommodations were undercut by her statements in
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applications for long-term disability and social security disability benefits, “in which she swore
under oath that was unable to perform her job.” Aubrey, 975 F.3d at 1013. The Court emphasized
that the plaintiff’s seemingly contradictory positions “present[ed] a question for a jury”:
When faced with a plaintiff’s previous sworn statement asserting “total disability”
or the like, the court should require an explanation of any apparent inconsistency
with the necessary elements of an ADA claim. To defeat summary judgment, that
explanation must be sufficient to warrant a reasonable juror’s concluding that,
assuming the truth of, or the plaintiff’s good-faith belief in, the earlier statement,
the plaintiff could nonetheless “perform the essential functions” of her job, with or
without “reasonable accommodation.”
Id. (quoting Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 807 (1999)). Here, Ms. Beard
testified that she believed she could return to a position at Brink’s if given the necessary
accommodations. See Beard Dep. 136:3-8; see also 42 U.S.C. § 12111(8) (an individual may be
qualified for purposes of the ADA “with or without reasonable accommodation”) (emphasis
added). A reasonable jury could accept that explanation, particularly where it is undisputed that
Brink’s itself offered Ms. Beard a job and tried to schedule her for work on June 7, 2021—an
undisputed fact notably at odds with its current argument that she was not qualified.
Construing these facts in a light most favorable to Ms. Beard, a reasonable jury could
conclude that she was otherwise qualified.
3. 	Reasonable accommodation
Next, Ms. Beard must show that there is a triable issue regarding whether she requested a
reasonable accommodation. Initially, the court must assess whether Ms. Beard requested an
accommodation because “[a]n employer cannot be liable for failing to accommodate a disability
if it is unaware of the need for an accommodation.” Aubrey, 975 F.3d at 1006. “[T]he term
‘reasonable accommodation’ refers to those accommodations which presently, or in the near
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future, enable the employee to perform the essential functions of his job.” Lincoln, 900 F.3d at
1205 (internal quotation marks omitted). “The determination of whether a requested
accommodation is reasonable must be made on the facts of each case taking into consideration
the particular individual's disability and employment position.” Punt, 862 F.3d at 1050 (internal
quotation marks omitted).
Brink’s argues that Ms. Beard did not request any accommodations before June 7, 2021,
the date she was ordered to return to work.5 The record evidence does show that, at that time,
Ms. Beard did not provide Brink’s a list of specific restrictions that a doctor had prescribed as
necessary to accommodate her disability, but the evidence also shows that it would have been
impossible for her to do so until she met with her doctor for a scheduled appointment on June 15,
2021. Until that day, Ms. Beard did not know exactly what her then-physical limitations were or
what accommodations she would need to perform a job at Brink’s. Recall, too, that until on or
around May 14, 2021, she had been on a complete work restriction for more than a year; Ms.
Brinks has presented evidence showing that that restriction was removed not because her doctor
thought it medically prudent6 but at her request because she believed the restriction was no
longer necessary in light of her apparent termination from Brink’s7 and her plan to transition into
5 Rather, as will be discussed below, Brink’s emphasizes the fact that Ms. Beard had been fully
cleared for work on or about May 18, 2021. See May 2021 Release; see also Brink’s Motion at 9,
20.
6 Whether the physician’s actions in this regard were consistent with a professional standard of
care is not an issue this court need address here.
7 Brink’s insists that Ms. Beard should have immediately recognized that she was still a Brink’s
employee and had not been terminated once Rice-Minor notified her that the April 2021 Letter
was sent in error. See Brink’s Motion at 17. But there is a clear fact dispute on that point,
precipitated by Brink’s self-professed mistakes—see ECF No. 76-2 at 27—and representations
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a less physically-demanding job. When Brink’s reached out on May 19, 2021, to ask about her
interest in returning to work, Ms. Beard explained that she believed she could return, but with
limitations, and that she would not know what those were until she had followed up with her
doctor on June 15, 2021. Beard Dep. 109:16-25, 110:12-21, 115:9-14. Brink’s did not give her
that opportunity.
Put simply, the facts in the record here would allow a jury to conclude that Ms. Beard
asked Brink’s for a reasonable accommodation in the form of delaying her return to work a mere
eight days—from June 7 to June 15, 2021—until she could confer with her workers’
compensation physician about an accommodation that would allow her to resume work at
Brink’s. Cf. Aubrey, 975 F.3d at (recognizing that “[i]t is well-settled that a request for leave may
lead to a ‘reasonable’ accommodation,” and concluding that the plaintiff’s request for an
additional six weeks to attend a scheduled appointment with a neurologist was not “opened-
ended” so as to render it an unreasonable accommodation) (citation and internal quotation marks
omitted). By requesting a reasonable accommodation, Ms. Beard triggered the requirement that
Brink’s engage in the interactive process contemplated by the ADA.
“To facilitate the reasonable accommodation, ‘[t]he federal regulations implementing the
ADA envision an interactive process that requires participation by both parties.’” Bartee v.
Michelin N. Am., Inc., 374 F.3d 906, 916 (10th Cir. 2004) (quoting Templeton v. Neodata Servs.,
Inc., 162 F.3d 617, 619 (10th Cir. 1998)). And “[w]hile the exact shape of this interactive
dialogue will necessarily vary from situation to situation and no rules of universal application
can be articulated, the interactive process necessarily includes good-faith communications
concerning Ms. Beard’s employment status—see April 2021 Letter.
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between the employer and employee.” Id. (cleaned up). Once the interactive process is triggered,
an employer has “a duty to engage . . . in a good faith effort to identify the precise limitations
resulting from the disability and potential reasonable accommodations that could overcome those
limitations.” Id. (citation and internal quotation marks omitted).
On this record, a jury could find that Brink’s failed to engage in an interactive process
with Ms. Beard to determine if there was a reasonable accommodation that would have enabled
her to perform the essential functions of a job at Brink’s. Construing the evidence in the light
most favorable to Ms. Beard, as the court must, the interactive process broke down when Brink’s
insisted that Ms. Beard return to work on June 7, 2021—disregarding her request to defer her
return-to-work date for a few days until she could see her physician and present to Brink’s
specific information concerning what tasks she could perform and what accommodations she
would need to perform them. “Ultimately, the problem in this case was that [Brink’s] did not
engage in this interactive process, or at least there is certainly evidence from which a reasonable
jury could find that to be the case.” See Aubrey, 975 F.3d at 1007-08; see also Bartee, 374 F.3d
at 916 (“Michelin did not inquire about his restrictions or about the accommodations that he
needed to perform the planning position.”). It may be that Ms. Beard shares some blame for the
interactive process stalling out—she did refuse to speak with Rice-Minor after a certain point,
see Beard Dep. 118:24-119:2—but that only highlights the existence of a fact dispute that
renders summary judgment inappropriate.
The evidence presented on the summary judgment record here could allow a reasonable
jury to find that Ms. Beard requested a plausibly reasonable accommodation. That
accommodation might have quickly resulted in her ability to identify further accommodations
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that would have permitted her to return, in the near future, to performing the essential functions
of a job at Brink’s—even if in a different position than the one she previously had. See 42 U.S.C.
§ 12111(9)(B); see also Aubrey, 975 F.3d at 1012 (“If the employee is unable to return to her
previous job, reassignment to a vacant position can be a reasonable accommodation and is
particularly amenable to consideration during a genuine interactive process between the
employee and employer.”). Ms. Beard has met her burden on the third element of her prima facie
claim.
4. 	No accommodation
There is no dispute that Ms. Beard established the fourth element of her prima facie
claim: that Brinks did not provide any accommodation. See Aubrey, 975 F.3d at 1013.
* 	* 	*
In sum, Ms. Beard presented sufficient evidence to establish a prima facie failure-to-
accommodate claim. With that, the burden shifts to Brink’s “to present evidence either
(1) conclusively rebutting one or more elements of the plaintiff’s prima facie case or
(2) establishing an affirmative defense, such as undue hardship or one of the other affirmative
defenses available to the employer.” Lincoln, 900 F.3d at 1204 (internal quotation marks
omitted). Brink’s has not adduced sufficient evidence to conclusively rebut any elements of this
claim. Neither has it presented evidence to establish an affirmative defense, including undue
hardship—which, the court notes, would create a patent facial conflict with the undisputed
evidence showing that Brink’s had allowed Ms. Beard to be on leave for more than a year with
no apparent compromise to its interests. Indeed, Brink’s Motion does not mention an affirmative
defense to either Ms. Beard’s failure-to-accommodate or disability discrimination claims. See
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Brink’s Motion at 18-20.8 The court finds the evidence here sufficient for Ms. Beard’s failure-to-
accommodate claim to survive summary judgment and to put the question in the hands of a jury.
This court, therefore, respectfully RECOMMENDS that Brink’s Motion for Summary
Judgment be denied in part, insofar as it seeks summary judgment summary judgment on Ms.
Beard’s failure-to-accommodate claim.
C. 	Discrimination Because of Disability
Ms. Beard has also alleged that Brink’s engaged in discrimination against her because of
her disability. “Different than a failure-to-accommodate claim, to recover on a discrimination
claim, a plaintiff must prove that the defendant acted with a discriminatory animus against her
because she had a disability.” Aubrey, 975 F.3d at 1014 (cleaned up). When there is no direct
evidence of such animus—none is timely alleged here—courts must apply the McDonnell-
Douglas burden-shifting framework. Id. (citing Lincoln, 900 F.3d at 1192); see also McDonnell-
Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973).
At the first step of the McDonnell-Douglas analysis, Ms. Beard must demonstrate a prima
facie case of disability discrimination. To do that, she must show “(1) that she is disabled within
the meaning of the ADA; (2) that she is qualified for the job held or desired; and (3) that she was
discriminated against because of her disability.” Lincoln, 900 F.3d at 1192 (cleaned up). As
discussed above in connection with the failure-to-accommodate claim, Ms. Beard has satisfied
her burden on the first two elements. “As for the third element, the ADA defines ‘discrimination’
8 Brink’s raises as affirmative defenses Ms. Beard’s failure to administratively exhaust—which
has already been addressed—and the “Ellerth /Faragher” defense to Ms. Beard’s
harassment/hostile work environment claims. Brink’s Motion at 22-23.
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to include ‘not making reasonable accommodations to the known physical . . . limitations of an
otherwise qualified individual.’” Aubrey, 975 F.3d at 1014 (quoting 42 U.S.C.
§ 12112(b)(5)(A); citing Smith, 180 F.3d at 1161). Having already concluded that a jury could
find that Brink’s failed to accommodate Ms. Beard, Ms. Beard met her burden on the third
element.
With Ms. Beard having established a prima facie case, the burden shifts to Brink’s to
articulate a legitimate, nondiscriminatory reason for its actions. See E.E.O.C. v. C.R. England,
Inc., 644 F.3d 1028, 1038 (10th Cir. 2011). To meet its burden on this prong of McDonnell-
Douglas, Brink’s makes three points: (1) Ms. Beard failed to return to work despite the May
2021 Release; (2) she did not provide any written restrictions from any doctor in the May/June
2021 timeframe for Brink’s to consider; and (3) she “dogged[ly]” refused to engage in the
interactive process with Rice-Minor. Brink’s Motion at 20. It is Ms. Beard’s burden to show that
Brink’s justifications were a pretext for disability discrimination:
A plaintiff may show pretext by demonstrating the proffered reason is factually
false, or that discrimination was a primary factor in the employer’s decision. This
is often accomplished by revealing weakness, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered reason, such that a
reasonable fact finder could deem the employer’s reason unworthy of credence.
Lincoln, 900 F.3d at 1193 (internal quotation marks and citations omitted). The court finds that
Ms. Beard has adduced sufficient evidence to create a triable issue regarding pretext, and that a
reasonable jury could find that Brink’s reasons for addressing Ms. Beard’s disability in the
manner which it did were “unworthy of credence” because they were inaccurate, implausible,
inconsistent, contradictory, or motivated by discriminatory animus.
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First, Brink’s reliance on the May 2021 Release is tenuous and subject to dispute. Ms.
Beard presented evidence showing that the Release was issued by her workers’ compensation
physician during a time when Ms. Beard believed that she had been terminated from Brink’s and
anticipated pursuing other, more sedentary forms of employment. Per her testimony contained in
the record here, her doctor issued the May 2021 Release because she asked him to, not because
he had concluded that she could be cleared without restrictions for the type of work she
previously had performed at Brink’s. Brink’s, however, instantly seized upon the Release, telling
Ms. Beard that, really, she was not actually terminated and would be placed on the work
schedule. Ms. Beard immediately responded and explained how the Release had come about;
confirmed that, in order to work at a job like her former position at Brink’s, she would need
accommodations, and asked Rice-Minor for a minimal amount of time to obtain new information
from her physician. Beard Dep. 110:12-21, 115:9-14. From this timeline, which includes
conflicting messages and actions on Brink’s part, a reasonable fact-finder could conclude that
Brink’s supposed reliance on the May 2021 Release was not a legitimate basis for refusing to
accommodate Ms. Beard.
Brink’s second reason—that Ms. Beard did not provide any written restrictions from any
doctor in the May/June 2021 timeframe for Brink’s to evaluate—is accurate. Nevertheless, a jury
might reasonably conclude that this was the result of a situation of Brink’s own contrivance that
evinces a discriminatory animus toward Ms. Beard, given that Brinks’s denied her request for
just a few more days’ time that would have enabled her to provide the restrictions it now faults
her for omitting. See Aubrey, 975 F.3d at 1915 (finding the potential for a conclusion of
discriminatory animus where the employer “did not contact Aubrey for months, waiting until less
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than twenty-four hours before the hearing to notify Aubrey of the hearing and the need for her to
present updated medical information, waiting until the hearing to ask if she had a return-to-work
certification, and then not allowing her the usual two weeks given other employees to obtain
medical documentation to support her requested accommodations”).
Third, Ms. Beard has presented evidence to dispute the contention that she “dogged[ly]”
refused to engage in the interactive process with Rice-Minor. In the deposition of Rice-Minor
(which Ms. Beard herself conducted), Rice-Minor testified that she had no recollection of ever
having spoken with Ms. Beard, despite Ms. Beard’s presentation of her cell phone records
reflecting calls to Rice-Minor’s number. ECF No. 78-2 at 11:7-17, 19:16-20; 21:1-6, 46:13-
47:17. Here, again, is evidence to reasonably support a jury’s conclusion that Brink’s actions—
through its designated human resources representative Rice-Minor—were calculated to thwart
Ms. Beard’s efforts to obtain an accommodation and were thus a pretext for discrimination.
To sum up, the evidence, when viewed in Ms. Beard’s favor, is sufficient to create a
question of fact as to whether Brink’s proffered reasons for failing to accommodate Ms. Beard’s
disability were pretextual. See Clayton v. Vanguard Car Rental U.S.A., Inc., 761 F. Supp. 2d
1210, 1261 (D.N.M. 2010) (“Because the Court believes that a reasonable factfinder could find
Vanguard’s proffered reason for its action rationally unworthy of credence, because of the
inconsistencies and contradictions in Vanguard’s proffered legitimate reasons for Clayton’s
termination, . . . the Court finds that there is a genuine issue of material fact whether Vanguard’s
proffered legitimate nondiscriminatory reason for terminating Clayton is pretextual.”). To find
otherwise would be to countenance one side’s telling of events over the other’s, thus requiring
the court to weigh the credibility of witnesses, resolve uncertain timelines, and ultimately
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determine what was reasonable under the circumstances. These are not proper endeavors on
summary judgment.
Therefore, the court respectfully RECOMMENDS that Brink’s Motion for Summary
Judgment be denied in part, insofar as it seeks summary judgment on Ms. Beard’s disability
discrimination claim.
D. 	Retaliation for Requesting an Accommodation
Ms. Beard additionally brings a claim of retaliation, ECF No. 1 at 14, which this court
liberally construes as based on her request for a reasonable accommodation. To establish a prima
facie case of ADA retaliation, a plaintiff must prove that (1) she engaged in a protected activity;
(2) she was subjected to an adverse employment action subsequent to or contemporaneous with
the protected activity; and (3) there was a causal connection between the protected activity and
the adverse employment action. See Foster v. Mountain Coal Co., LLC, 830 F.3d 1178, 1186–87
(10th Cir. 2016) (citing Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir. 1999)).
If the plaintiff can demonstrate a prima facie case for retaliation, the Court again analyzes her
claim using the McDonnell Douglas burden-shifting framework: the burden shifts to the
defendant to present a legitimate, nondiscriminatory reason for its action, and if the defendant
successfully does so, then the burden shifts back to the plaintiff to demonstrate that disability
was a determinative factor in the defendant’s employment decision, or that the proffered
explanation was merely pretext. See McDonnell Douglas Corp., 411 U.S. at 802–04.
Unlike with the failure-to-accommodate and disability discrimination claims, the court
finds that Ms. Beard has failed to meet her burden to establish a prima facie case of retaliation.
While she can make out the first element because a request for accommodation is a protected
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activity, Hurt, 664 F. Supp. 3d at 1242, there is no evidence in the record to support a jury
finding that she suffered an adverse employment action, which requires “a significant change in
employment status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits.” Annett v. Univ.
of Kansas, 371 F.3d 1233, 1237 (10th Cir. 2004) (citation and internal quotation marks omitted).
In May or June 2021, Ms. Beard was not terminated, reassigned, nor did she experience a
significant change in benefits. Indeed, she was on a lengthy period of unpaid leave prior to that
point, and she remained on unpaid leave for more than two years thereafter. During that time, she
found employment elsewhere. The court has located no precedent supporting the concept that a
failure to accommodate alone constitutes an adverse employment action; indeed, in the only
Tenth Circuit case referencing the issue that this court has found, the Tenth Court declined to
adopt such a rule. Exby-Stolley v. Bd. of Cnty. Comm’rs, Weld Cnty., Colo., 906 F.3d 900, 918
(10th Cir. 2018), opinion vacated on reh’g en banc sub nom. on other grounds Exby-Stolley v.
Bd. of Cnty. Comm’rs, 979 F.3d 784 (10th Cir. 2020) (en banc). In rejecting the argument “that
all failures to accommodate are adverse employment actions,” see id., the Court distinguished the
cases cited by the plaintiff. Id. (discussing Colwell v. Rite Aid Corp., 602 F.3d 495 (3d Cir.
2010), and Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751 (3d Cir. 2004)). As for
Colwell, the Tenth Circuit expressed
doubt whether [the Third Circuit was] asserting that all failures to make reasonable
accommodations are necessarily adverse employment decisions. But if that is the
thrust of the statement, the opinion contains no analysis of the statutory language
or any other support for that proposition; and the point was irrelevant to the rest of
the opinion.
Id. (emphasis in original); see also id. (further noting that, “to the extent that dictum in [Colwell
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and Williams] is contrary to our view, we are not persuaded”). The Court likewise observed that
Williams failed to grapple with the specific language in the ADA requiring that the
discrimination must be “in regard to job application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job training, [or] other terms, conditions and
privileges of employment.” Id. (quoting 42 U.S.C. § 12112(a)). Failure to accommodate,
obviously, is not included on this list.
Existing precedent, then, provides no support for this court to find that a failure to
accommodate, in and of itself—which is all Ms. Beard advances here—constitutes an adverse
employment action. Because Ms. Beard has come forward with no evidence indicating the
existence of an adverse action, there is no evidence from which a jury could find that she has
established a prima facie retaliation claim. Accordingly, the court respectfully RECOMMENDS
that Brink’s Motion for Summary Judgment be granted in part, insofar as it seeks summary
judgment on Ms. Beard’s retaliation claim.
II. 	Ms. Beard’s Motion for Summary Judgment
The court has already determined—while construing the facts in Ms. Beard’s favor—that
Brink’s is entitled to summary judgment on Ms. Beard’s Title VII and ADA hostile work
environment claims as well as her ADA retaliation claim and that there are genuine issues of
material fact on her failure to accommodate and disability discrimination claims. By concluding
that genuine issues of material fact remain on Ms. Beard’s surviving claims, the court cannot
grant judgment as a matter of law to either party. See Buell Cabinet Co. v. Sudduth, 608 F.2d
431, 433 (10th Cir. 1979) (“Cross-motions for summary judgment are to be treated separately;
the denial of one does not require the grant of another. The existence of any genuine issue as to
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any material fact precludes the grant of summary judgment.”) (cleaned up). Accordingly, the
court respectfully RECOMMENDS that Ms. Beard’s Motion for Summary Judgment be
denied.
CONCLUSION
Consistent with the above, this court respectfully RECOMMENDS that Brink’s Motion
for Summary Judgment (ECF No. 76) be granted in part and denied in part and Ms. Beard’s
Motion for Summary Judgment (ECF No. 78) be denied.9
DATED: September 13, 2024 	BY THE COURT:
Susan Prose
United States Magistrate Judge
9 Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after
service of a Magistrate Judge’s order or recommendation, any party may serve and file written
objections with the Clerk of the United States District Court for the District of Colorado. 28
U.S.C. §§ 636(b)(1)(A), (B); Fed. R. Civ. P. 72(a), (b). Failure to make any such objection will
result in a waiver of the right to appeal the Magistrate Judge’s order or recommendation. See
Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 782 (10th Cir. 2021) (firm waiver
rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119,
1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require
review, including when a “pro se litigant has not been informed of the time period for objecting
and the consequences of failing to object”).
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