Jack M. Delaney v. Lowe’s Home Center, LLC

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
JACK M. DELANEY,
Plaintiff - Appellant,
v.
LOWE’S HOME CENTER, LLC,
Defendant - Appellee.
No. 20-1438
(D.C. No. 1:19-CV-02481-NYW)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, PHILLIPS, and EID, Circuit Judges.
_________________________________
Jack M. Delaney, proceeding pro se, appeals from the district court’s decision
granting summary judgment in favor of Lowe’s Home Center on his complaint
alleging employment discrimination based on age and disability. We affirm.
I. Background
The parties are familiar with the factual background and it is set out in detail in
the district court’s decision. We will only briefly summarize it here.
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
September 15, 2021
Christopher M. Wolpert
Clerk of Court
Appellate Case: 20-1438 Document: 010110576287 Date Filed: 09/15/2021 Page: 1

-- 1 of 6 --

2
Lowe’s hired Mr. Delaney when he was 75 years old. He worked at one of its
home improvement stores without incident for almost five years until he injured his
right knee. When he returned to work after knee replacement surgery, Mr. Delaney
made several requests for accommodations and submitted evaluations from medical
providers that detailed his work restrictions. Based on his work restrictions, Lowe’s
ultimately determined that no reasonable accommodations could allow Mr. Delaney
to perform the essential functions of his position as a Sales Specialist in the Millwork
Department.
Mr. Delaney was told not to work in the Millwork Department while Lowe’s
looked for a vacant position that could accommodate his workplace restrictions.
Lowe’s initially determined that the store did not have any positions that could
accommodate Mr. Delaney’s restrictions and it further determined that a continuous
leave was the only accommodation it could offer him. But after learning that some of
his work restrictions might be temporary, Lowe’s subsequently offered Mr. Delaney
a temporary reassignment as a Front End Customer Service Associate at the same
salary as his Sales Specialist position. He did not accept the reassignment, but he did
not resign. Instead, Mr. Delaney went on Americans with Disabilities Act (ADA)
leave on the advice of his physician and received short-term disability benefits. He
did not return to work at Lowe’s after his leave ended.
Mr. Delaney filed a charge of discrimination with the Equal Employment
Opportunity Commission and obtained a right-to-sue letter. He then filed the
underlying pro se complaint alleging that Lowe’s violated the Age Discrimination in
Appellate Case: 20-1438 Document: 010110576287 Date Filed: 09/15/2021 Page: 2

-- 2 of 6 --

3
Employment Act (ADEA) and the ADA. The district court granted summary
judgment in favor of Lowe’s on both claims and Mr. Delaney now appeals.
II. Discussion
We review de novo the district court’s decision granting Lowe’s motion for
summary judgment. Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 762 F.3d
1114, 1118 (10th Cir. 2014). “Summary judgment is appropriate ‘if the movant
shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)).
In considering Lowe’s motion for summary judgment, the district court
construed Mr. Delaney’s complaint as alleging disparate treatment, failure to
accommodate, and retaliation under the ADA. The court considered Mr. Delaney’s
ADA claim using the burden-shifting framework articulated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under that framework, the plaintiff
carries the initial burden of establishing a prima facie case of discrimination. See id.
at 802.
The district court first determined that Mr. Delaney failed to establish a prima
facie case of disparate treatment because he could not demonstrate that he was
qualified to perform the essential functions of the Sales Specialist position with or
without accommodation based on his documented physical restrictions. The court
next determined that Mr. Delaney failed to establish a prima facie case that Lowe’s
failed to provide reasonable accommodations for his disability because it did approve
his requests for additional monthly absences and offered him a temporary
Appellate Case: 20-1438 Document: 010110576287 Date Filed: 09/15/2021 Page: 3

-- 3 of 6 --

4
reassignment to a vacant position that did not result in a decrease in pay. Although
Mr. Delaney requested a captioned phone and did not receive it, the court explained
that he did not put forth any evidence that the captioned phone was required to
perform the essential functions of the Sales Specialist position.
Finally, the court determined that Mr. Delaney failed to establish a prima facie
case of retaliation because there was no evidence that Lowe’s retaliated against him
for requesting accommodations. The court noted that Mr. Delaney refused to accept
Lowe’s offer to be temporarily reassigned to a different position and presented no
evidence that the reassignment constituted an adverse employment action. Because
Mr. Delaney could not establish a prima facie case of disparate treatment, failure to
accommodate or retaliation, the district court granted summary judgment in favor of
Lowe’s on his ADA claim.
On appeal, Mr. Delaney argues: (1) Lowe’s “misdefined the essential
functions of the [Sales Specialist] job,” Aplt. Opening Br. at 2;1 (2) Lowe’s “did not
abide by [a] ruling” from the Central District of California about how to handle ADA
1 Mr. Delaney refers in this first issue to the need for Lowe’s to offer a
reasonable explanation for an action that “may be related to the age or disability of
the plaintiff.” Aplt. Opening Br. at 2 (emphasis added). This stray reference to age
is the only reference in Mr. Delaney’s opening brief that could be linked to his
ADEA claim, but it does not adequately explain how the district court erred in
granting summary judgment in favor of Lowe’s on that claim. Accordingly,
Mr. Delaney has forfeited appellate review of the district court’s ruling on his ADEA
claim. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e
routinely have declined to consider arguments that are not raised, or are inadequately
presented, in an appellant’s opening brief.); id. (“[T]he omission of an issue in an
opening brief generally forfeits appellate consideration of that issue.”).
Appellate Case: 20-1438 Document: 010110576287 Date Filed: 09/15/2021 Page: 4

-- 4 of 6 --

5
accommodations, id.; (3) he was informed by a court officer that he could not present
any evidence that contradicted his own evidence, id. at 32; (4) Lowe’s did not have a
legitimate justification for not complying with his timely requests for a captioned
phone; (5) Lowe’s did not provide a captioned phone to Mr. Delaney, which “was
mandated by the VA and FCC” and “Lowe’s has not addressed why they violated this
mandate and how their behavior fit within the regulations of these agencies,” id. at 4;
and (6) “when Mr. Delaney was removed from his position, he was still covered by
the Worker’s Compensation Authority” and “[h]is removal did not comply with
Worker’s Compensation Regulations,” id. (boldface omitted).
We liberally construe Mr. Delaney’s pro se filings, but we do not “take on the
responsibility of serving as the litigant’s attorney in constructing arguments and
searching the record.” Garrett v. Selby, Connor, Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005). We agree with Lowe’s that Mr. Delaney is raising several new
2 This issue appears to be based on Mr. Delaney’s belief that the medical
records he submitted as part of his Accommodation Request Assessment Forms do
not accurately reflect his physical abilities. In his request for oral argument, he states
“it is pertinent that the court is able to see the plaintiff and allow for his physical
state to be accounted for, regardless of what the medical records state.” Aplt.
Opening Br. at 5. He also attaches a document to his brief that he states “is not being
presented as evidence” but “as an example . . . of the information [he] might have
provided if [he] had not been misled during the discovery phase . . . when it was
alleged that [he] cannot see.” Addendum to Aplt. Opening Br. We have not
considered the document in the Addendum because our “inquiry is limited to the
summary judgment record before the district court when the motion was decided.”
West Coast Life Ins. Co. v. Hoar, 558 F.3d 1151, 1157 (10th Cir. 2009)
(internal quotation marks omitted).
Appellate Case: 20-1438 Document: 010110576287 Date Filed: 09/15/2021 Page: 5

-- 5 of 6 --

6
issues for the first time on appeal that he did not raise in his response to summary
judgment; specifically, his second, third, fifth, and sixth issues. Because
Mr. Delaney failed to preserve these issues in district court and fails to argue for
plain-error review on appeal, we deem these issues waived and we decline to review
them. See United States v. Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019) (“When an
appellant fails to preserve an issue and also fails to make a plain-error argument on
appeal, we ordinarily deem the issue waived (rather than merely forfeited) and
decline to review the issue at all—for plain error or otherwise.”).
As for his remaining issues, Mr. Delaney has not shown that the district court
committed reversible error in granting summary judgment in favor of Lowe’s on his
ADA claim. Instead, we agree with the district court’s thorough and well-reasoned
analysis in its Memorandum Opinion and Order, and we affirm the judgment for
substantially the same reasons stated in that decision.
Entered for the Court
Allison H. Eid
Circuit Judge
Appellate Case: 20-1438 Document: 010110576287 Date Filed: 09/15/2021 Page: 6

-- 6 of 6 --