Appellate Case: 24-1394 Document: 15-1 Date Filed: 08/27/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 27, 2025 _________________________________ Christopher M. Wolpert Clerk of Court TOBIN BEREZNAK,
Plaintiff - Appellant,
v. No. 24-1394 (D.C. No. 1:23-CV-01318-DDD-JPO) ARROW ELECTRONICS, INC., (D. Colo.)
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HARTZ, MORITZ, and ROSSMAN, Circuit Judges. _________________________________
Plaintiff Tobin Bereznak sued his former employer, Defendant Arrow
Electronics, Inc. (“Arrow”), under the Americans with Disabilities Act, 42 U.S.C.
§§ 12101–213. The district court granted Arrow’s motion to dismiss, and
Mr. Bereznak has timely appealed. Exercising jurisdiction under 28 U.S.C. § 1291,
we affirm.
* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 24-1394 Document: 15-1 Date Filed: 08/27/2025 Page: 2
I. Background
Mr. Bereznak started working as an engineer for Arrow in 2018. On
September 8, 2021, Arrow sent an email to its Colorado employees regarding
COVID-19 health and safety guidelines. It explained Arrow would require its
employees to be vaccinated by December 1, 2021.
After he received the email, Mr. Bereznak communicated his objections to the
policy. He served two documents on Arrow’s registered agent in which he argued
Arrow had no legal authority to compel testing or vaccination, and he had not
consented to any medical interventions. He also asserted he reserved his right to
refuse vaccination on religious and moral grounds and demanded accommodations
for his religious beliefs, including being exempted from the vaccination, testing, and
mask-wearing requirements.
On October 25, 2021, Arrow sent another company-wide email advising that
employees who had not registered their vaccination status by December 1, 2021,
would be terminated on December 2, 2021. Mr. Bereznak did not report his status by
the deadline, and he was fired the next day.
Mr. Bereznak then filed an EEOC complaint alleging religious discrimination,
but he later abandoned that claim and instead asserted claims under the ADA. The
EEOC sent him a right-to-sue letter on February 24, 2023. Mr. Bereznak then filed a
complaint against Arrow in federal district court, asserting three ADA claims:
(1) disability discrimination, (2) retaliation on the basis of disability, and
(3) violation of the ADA’s prohibition on disability-related medical inquiries. Arrow
2 Appellate Case: 24-1394 Document: 15-1 Date Filed: 08/27/2025 Page: 3
moved to dismiss the complaint, and a magistrate judge issued a recommendation
that the motion be granted. Mr. Bereznak filed objections to the recommendation,
but the district court overruled them, adopted the recommendation in full, and
granted Arrow’s motion to dismiss. This appeal followed.
II. Discussion
Mr. Bereznak asserts the abuse-of-discretion standard applies to his appeal, but
we review a Rule 12(b)(6) dismissal de novo. Serna v. Denver Police Dep’t, 58 F.4th
1167, 1169 (10th Cir. 2023). We accept as true all well-pleaded facts in the
complaint and view them in the light most favorable to Mr. Bereznak. See Brooks v.
Mentor Worldwide LLC, 985 F.3d 1272, 1281 (10th Cir. 2021). But we do not
assume the truth of conclusory allegations. See id. “To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks omitted). Because Mr. Bereznak proceeds pro se, we
liberally construe his filings, but we do not act as an advocate. Yang v. Archuleta,
525 F.3d 925, 927 n.1 (10th Cir. 2008).
A. Disability Discrimination
The ADA protects not just employees who are disabled, but also those who are
discriminated against because they have “a record of such an impairment” or are
“regarded as having such an impairment.” 42 U.S.C. § 12102(1)(B)-(C).
Mr. Bereznak alleged Arrow discriminated against him because it “regarded” him as
being impaired or because it treated him as having a “record of such an impairment.”
3 Appellate Case: 24-1394 Document: 15-1 Date Filed: 08/27/2025 Page: 4
The district court held he did not plausibly allege either of these theories. In his
briefing, Mr. Bereznak disclaims any intention of challenging the district court’s
ruling on these theories. Therefore, he has affirmatively waived any challenge to the
district court’s dismissal of his disability discrimination claim, and we affirm.
B. Retaliation
Mr. Bereznak alleges a claim of ADA retaliation based on his opposition to
Arrow’s COVID-19 policy. To plead a prima facie case of ADA retaliation,1
a plaintiff must plausibly allege that: (1) he engaged in protected opposition to
discrimination, (2) he suffered an adverse employment action as a result, and
(3) there is a causal connection between the protected activity and the employer’s
action. Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1209 (10th Cir. 2018). The district
court dismissed Mr. Bereznak’s retaliation claim because he failed to plausibly allege
a causal connection between his opposition to the vaccination policy and Arrow’s
adverse employment action. We agree with the district court’s conclusion.
The plaintiff has the burden of showing but-for causation, see Univ. of Tex.
Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 346-47 (2013), which “must be based on
more than mere speculation, conjecture, or surmise,” Lincoln, 900 F.3d at 1209.
Mr. Bereznak asserts he was fired for his opposition to Arrow’s vaccination policy,
1 We reject Mr. Bereznak’s insistence that Arrow had the burden at the pleading stage to demonstrate compliance with the ADA. That burden clearly rests with the plaintiff. See Khalik v. United Air Lines, 671 F.3d 1188, 1191-92 (10th Cir. 2012) (discussing plaintiff’s burden to set forth a plausible claim); Lincoln v. BNSF Ry.
Free access — add to your briefcase to read the full text and ask questions with AI
Appellate Case: 24-1394 Document: 15-1 Date Filed: 08/27/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 27, 2025 _________________________________ Christopher M. Wolpert Clerk of Court TOBIN BEREZNAK,
Plaintiff - Appellant,
v. No. 24-1394 (D.C. No. 1:23-CV-01318-DDD-JPO) ARROW ELECTRONICS, INC., (D. Colo.)
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HARTZ, MORITZ, and ROSSMAN, Circuit Judges. _________________________________
Plaintiff Tobin Bereznak sued his former employer, Defendant Arrow
Electronics, Inc. (“Arrow”), under the Americans with Disabilities Act, 42 U.S.C.
§§ 12101–213. The district court granted Arrow’s motion to dismiss, and
Mr. Bereznak has timely appealed. Exercising jurisdiction under 28 U.S.C. § 1291,
we affirm.
* 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. Appellate Case: 24-1394 Document: 15-1 Date Filed: 08/27/2025 Page: 2
I. Background
Mr. Bereznak started working as an engineer for Arrow in 2018. On
September 8, 2021, Arrow sent an email to its Colorado employees regarding
COVID-19 health and safety guidelines. It explained Arrow would require its
employees to be vaccinated by December 1, 2021.
After he received the email, Mr. Bereznak communicated his objections to the
policy. He served two documents on Arrow’s registered agent in which he argued
Arrow had no legal authority to compel testing or vaccination, and he had not
consented to any medical interventions. He also asserted he reserved his right to
refuse vaccination on religious and moral grounds and demanded accommodations
for his religious beliefs, including being exempted from the vaccination, testing, and
mask-wearing requirements.
On October 25, 2021, Arrow sent another company-wide email advising that
employees who had not registered their vaccination status by December 1, 2021,
would be terminated on December 2, 2021. Mr. Bereznak did not report his status by
the deadline, and he was fired the next day.
Mr. Bereznak then filed an EEOC complaint alleging religious discrimination,
but he later abandoned that claim and instead asserted claims under the ADA. The
EEOC sent him a right-to-sue letter on February 24, 2023. Mr. Bereznak then filed a
complaint against Arrow in federal district court, asserting three ADA claims:
(1) disability discrimination, (2) retaliation on the basis of disability, and
(3) violation of the ADA’s prohibition on disability-related medical inquiries. Arrow
2 Appellate Case: 24-1394 Document: 15-1 Date Filed: 08/27/2025 Page: 3
moved to dismiss the complaint, and a magistrate judge issued a recommendation
that the motion be granted. Mr. Bereznak filed objections to the recommendation,
but the district court overruled them, adopted the recommendation in full, and
granted Arrow’s motion to dismiss. This appeal followed.
II. Discussion
Mr. Bereznak asserts the abuse-of-discretion standard applies to his appeal, but
we review a Rule 12(b)(6) dismissal de novo. Serna v. Denver Police Dep’t, 58 F.4th
1167, 1169 (10th Cir. 2023). We accept as true all well-pleaded facts in the
complaint and view them in the light most favorable to Mr. Bereznak. See Brooks v.
Mentor Worldwide LLC, 985 F.3d 1272, 1281 (10th Cir. 2021). But we do not
assume the truth of conclusory allegations. See id. “To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks omitted). Because Mr. Bereznak proceeds pro se, we
liberally construe his filings, but we do not act as an advocate. Yang v. Archuleta,
525 F.3d 925, 927 n.1 (10th Cir. 2008).
A. Disability Discrimination
The ADA protects not just employees who are disabled, but also those who are
discriminated against because they have “a record of such an impairment” or are
“regarded as having such an impairment.” 42 U.S.C. § 12102(1)(B)-(C).
Mr. Bereznak alleged Arrow discriminated against him because it “regarded” him as
being impaired or because it treated him as having a “record of such an impairment.”
3 Appellate Case: 24-1394 Document: 15-1 Date Filed: 08/27/2025 Page: 4
The district court held he did not plausibly allege either of these theories. In his
briefing, Mr. Bereznak disclaims any intention of challenging the district court’s
ruling on these theories. Therefore, he has affirmatively waived any challenge to the
district court’s dismissal of his disability discrimination claim, and we affirm.
B. Retaliation
Mr. Bereznak alleges a claim of ADA retaliation based on his opposition to
Arrow’s COVID-19 policy. To plead a prima facie case of ADA retaliation,1
a plaintiff must plausibly allege that: (1) he engaged in protected opposition to
discrimination, (2) he suffered an adverse employment action as a result, and
(3) there is a causal connection between the protected activity and the employer’s
action. Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1209 (10th Cir. 2018). The district
court dismissed Mr. Bereznak’s retaliation claim because he failed to plausibly allege
a causal connection between his opposition to the vaccination policy and Arrow’s
adverse employment action. We agree with the district court’s conclusion.
The plaintiff has the burden of showing but-for causation, see Univ. of Tex.
Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 346-47 (2013), which “must be based on
more than mere speculation, conjecture, or surmise,” Lincoln, 900 F.3d at 1209.
Mr. Bereznak asserts he was fired for his opposition to Arrow’s vaccination policy,
1 We reject Mr. Bereznak’s insistence that Arrow had the burden at the pleading stage to demonstrate compliance with the ADA. That burden clearly rests with the plaintiff. See Khalik v. United Air Lines, 671 F.3d 1188, 1191-92 (10th Cir. 2012) (discussing plaintiff’s burden to set forth a plausible claim); Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1209 (10th Cir. 2018) (describing what plaintiff must demonstrate in order to establish a prima facie case of ADA retaliation). 4 Appellate Case: 24-1394 Document: 15-1 Date Filed: 08/27/2025 Page: 5
but he failed to plausibly allege that but for his opposition he would not have been
terminated. To the contrary, his pleadings and response to Arrow’s motion to dismiss
make clear he was discharged for failing to comply with Arrow’s policy. See R. at
19, ¶ 111 (alleging he was told he was fired for failing to provide his vaccination
status); id. at 33, ¶ 226 (“each adverse employment action described herein was
causally related to plaintiff’s good faith refusal of the mitigation measures”); see also
id. at 160 (“[W]hen he did not comply with the demands of the Covid policy he was
retaliated against and fired. There was no other reason he [was] terminated”).
Mr. Bereznak argues the district court failed to address his allegations that
Arrow retaliated against him by imposing qualification standards for employment
(e.g., vaccination requirements) “that are unrelated to performing the essential
functions of the job.” Opening Br. at 7. But by the terms of his own allegations,
those standards were applicable to all employees. “[A]llegations of adverse actions
that occur as a result of generally applicable workplace policies fail to state a
retaliation claim.” Sharikov v. Philips Med. Sys. MR, Inc., 103 F.4th 159, 171
(2d Cir. 2024) (internal quotation marks omitted). This is “because absent
allegations of more direct hostile conduct, a reasonable employee would not be
dissuaded from taking protected action simply because he is subject to the same
policies as other employees.” Id. (brackets and internal quotation marks omitted).
Mr. Bereznak also insists the district court erred because it was required to
accept as true his allegation that his termination was retaliatory. The law says
otherwise. As the Supreme Court has held, for purposes of a motion to dismiss,
5 Appellate Case: 24-1394 Document: 15-1 Date Filed: 08/27/2025 Page: 6
courts “are not bound to accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). The district court was not
required to accept as true the bald assertion that the termination was retaliatory.
Indeed, as discussed above, Mr. Bereznak’s own allegations establish that his
opposition to Arrow’s policy was not the but-for cause of his termination.
C. Medical Inquiries
Mr. Bereznak’s third claim is that Arrow violated the ADA’s prohibition on
disability-related medical inquiries by imposing on its employees, including
Mr. Bereznak, a vaccination attestation requirement. The ADA provides that an
employer “shall not make inquiries of an employee as to whether such employee is an
individual with a disability . . . unless such . . . inquiry is shown to be job-related and
consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A). As the district
court correctly noted, this provision by its terms forbids only those inquiries relating
to an individual’s disability. And being unvaccinated against COVID-19 or being
perceived as having COVID-19 are not disabilities under the ADA. See Sharikov,
103 F.4th at 169 (“[The plaintiff] does not explain how adopting measures to prevent
the spread of a communicable disease implies an impairment, and he cites no case
law equating prophylactic measures with assumptions of disability.”). Accordingly,
we agree with the district court that Mr. Bereznak failed to allege a cause of action
for violation of § 12112(d).
6 Appellate Case: 24-1394 Document: 15-1 Date Filed: 08/27/2025 Page: 7
III. Conclusion
We affirm the dismissal of Mr. Bereznak’s complaint.
Entered for the Court
Nancy L. Moritz Circuit Judge