Appellate Case: 23-1370 Document: 38-1 Date Filed: 10/01/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 1, 2024 _________________________________ Christopher M. Wolpert Clerk of Court DANIEL HERRICK,
Plaintiff - Appellant,
v. No. 23-1370 (D.C. No. 1:22-CV-00266-MEH) THE VAIL CORPORATION, (D. Colo.)
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before TYMKOVICH, MATHESON, and McHUGH, Circuit Judges. _________________________________
Daniel Herrick worked as a seasonal employee for the Vail Corporation (Vail)
from 2018 until his employment was terminated in 2021. Afterwards, he brought
this pro se action under the Americans with Disabilities Act (ADA), 42 U.S.C.
§§ 12101-12217, claiming Vail failed to accommodate his disability, wrongfully
discharged him, and then retaliated. The district court granted summary judgment to
Vail, and Herrick appealed. We have jurisdiction under 28 U.S.C. § 1291 and 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 23-1370 Document: 38-1 Date Filed: 10/01/2024 Page: 2
I
A. Factual History
Herrick worked for Vail as a ticket seller. He had three managers: Cam
Eiseman, Jackie Capriotti, and Quinton Neinaber. His ultimate supervisor was Karen
Reeder Pottraz. The year he was hired and annually thereafter, Herrick completed a
Voluntary Self-Identification of Disability form that asked whether he was disabled;
each year, he checked a box on the form, stating: “No, I don’t have a disability.”
R. at 97, 99, 101 (capitalization modified). Although Herrick once told Eiseman he
felt depressed during the Covid pandemic, he never told any manager or supervisor
he was disabled.
An essential part of Herrick’s job as a ticket seller required that he
communicate with coworkers and guests in a professional and courteous manner.
Vail’s protocol for dealing with difficult guests required that he listen to the guest,
de-escalate the situation, and try to resolve the problem. If he was unable to solve
the problem, he was required to call a supervisor. Notwithstanding this protocol,
Herrick was repeatedly reprimanded for exhibiting unprofessional behavior and
engaging in disrespectful and combative communications with guests and coworkers.
In particular, Herrick was disciplined and coached by Reeder Pottraz after he
was involved in a confrontation with another employee when a parking boot was
installed on his car. He also was disciplined when he “[got] into a tiff” with a
co-worker, R. at 78, that escalated into a “full yelling match,” R. at 219.
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Then on March 10, 2021, Herrick encountered a disgruntled guest who yelled
and cursed at him. Rather than adhere to the training protocol, Herrick raised his
voice and yelled profanities back at the guest. The guest left, Herrick followed, and
instead of calling a supervisor, he called security to discipline the guest. Capriotti
arrived and sent Herrick into a nearby office to separate him from the guest, but
Herrick refused. Capriotti repeated her directive, and Herrick complied, but when
she spoke with him after the incident, he “began yelling and verbally attacking” her,
even with Reeder Pottraz present. R. at 215, ¶ 9. Reeder Pottraz told Herrick he
should have found a manager and she had been in her office the entire time.
Later that night, Herrick emailed Reeder Pottraz his account of the incident
and informed her that he could no longer work for Capriotti because he felt
unsupported. He wrote: “perhaps I should [return next season] at a different office
where I maybe have more trust from the supervisors.” R. at 141.
Following the incident with the disgruntled guest, Reeder Pottraz emailed
Vail’s Department of Employee Relations for guidance on handling Herrick’s
conduct. She wrote that he had been coached or disciplined three times in eighteen
months due to “emotional outbursts with employees,” the disgruntled guest, and his
manager. R. at 225. She explained that the latest incident with the disgruntled guest
disrupted other employees and Herrick no longer wished to work with Capriotti.
Six days after the incident, on March 16, 2021, Vail terminated Herrick’s
employment, citing his repeated episodes of unprofessional behavior and his
disrespectful, combative communications with guests and coworkers.
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On April 2, 2021, Herrick began sending troubling and progressively
threatening emails to Vail employees. He first complained to Vail’s chief operating
officer (COO) that his employment was terminated after the incident with the
disgruntled guest. He then sent the COO another email on May 25, 2021, with the
subject line, “What do I need to do to get your attention? Hang myself by the neck
off the Lionshead gondola?” R. at 91 (internal quotation marks omitted); R. at 144.
He demanded an explanation for why he was fired and asked, “What’s better,
righting a wrong or cutting a corpse down from your gondola?” R. at 145. He
concluded by writing: “Address this now or suffer the consequences.” Id.
That email prompted a sheriff to visit Herrick at his home, and although he
denied that he was suicidal, he acknowledged at his deposition that he thought of
suicide every morning and wept for his two best friends who had killed themselves.
With the sheriff’s help, Herrick contacted a Vail employee who provided him with
mental health resources available through Vail’s Employee Assistance Program
(EAP). Herrick then sent an email to that same employee and the COO, writing: “I
would say thank you for the professional help, but of course you didn’t provide that
until weeks after I needed it.” R. at 92 (internal quotation marks omitted); R. at 149.
He also wrote that he “battle[d] suicidal feelings every morning.” Id. He sought
lifetime ski passes for himself and his daughter, warning that if the employees
objected to his request, they would “gamble with uncertainty.” R. at 150. He added
that Vail gave him an “experience to end a life” and concluded the email with:
“Barely hanging on, Dan Herrick.” Id. (internal quotation marks omitted).
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Thereafter, Herrick sent another email to the same two employees with the
subject line: “EAP information—would you rather litigate a wrongful death suit?”
R. at 93 (internal quotation marks omitted); R. at 146. He wrote: “If you continue in
this pool of callousness that HR and [an employee] are swimming in, I promise I will
exact revenge in the worst ways possible for Vail Resorts.” R. at 147. He demanded
that Vail admit wrongdoing “[o]r risk litigating a wrongful death suit, after cleaning
up my corpse on [Vail’s] property.” Id.
In yet another email, Herrick leveled personal attacks against the same two
employees. See R. at 153. The police contacted him again, but he was undeterred.
The very next day he emailed the two employees, writing: “It occurred to me as
I was talking to the police officers yesterday, I want to live to make your lives as
hellish as you’ve made mine. Lol!!!” R. at 94 (internal quotation marks omitted);
R. at 157. He wrote that one employee could ignore his emails, but she could not
avoid him in person. He encouraged her to wear make-up to work “because if I see
you cameras will be rolling and [you] will be asked all the tough questions you’ve
been ignoring.” Id. He continued: “I can only hope as many guests are present as
possible to witness when we do meet again . . . . it will no doubt add to my social
media campaign.” Id. He wrote that the other employee was “off the hook,” but she
should tell her coworkers to wear make-up because “[c]ameras will be rolling for
them too.” Id. Later that day, Herrick was escorted off of Vail’s property.
At that point, Vail provided Herrick with written notice, delivered by the
police, that effective immediately he was permanently banned from entering any
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property owned, leased, or controlled by Vail or any of its affiliates. Vail also
obtained temporary and permanent civil protection orders from a state court.
B. Procedural History
Herrick initiated this action under the ADA, claiming Vail failed to
accommodate his depression, wrongfully terminated his employment, and retaliated
by permanently banning him from its properties. Vail moved for summary judgment,
and after a full round of briefing, Herrick filed a sur-reply, attaching text messages
and several unsworn declarations from family and friends. The district court allowed
Vail to respond to the sur-reply, but then Herrick filed a second sur-reply with
additional exhibits. When the district court took up the summary judgment motion, it
excluded the declarations and text messages attached to the first sur-reply, struck the
second sur-reply, and granted summary judgment to Vail on all three claims. Herrick
appealed.
II
“[W]e review the district court’s grant of summary judgment de novo,
applying the same standards that the district court should have applied.” EEOC v.
C.R. Eng., Inc., 644 F.3d 1028, 1037 (10th Cir. 2011) (internal quotation marks
omitted). “A ‘court shall grant summary judgment 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.’” Aubrey v. Koppes, 975 F.3d 995, 1004 (10th Cir. 2020) (quoting
Fed. R. Civ. P. 56(a)). We view the evidence in the light most favorable to the
nonmoving party. Id. “However, if the nonmovant bears the burden of persuasion on
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a claim at trial, summary judgment may be warranted if the movant points out a lack
of evidence to support an essential element of that claim and the nonmovant cannot
identify specific facts that would create a genuine issue.” Lincoln v. BNSF Ry. Co.,
900 F.3d 1166, 1180 (10th Cir. 2018) (internal quotation marks omitted).
We liberally construe Herrick’s pro se materials, but we do not act as his
advocate. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005). Pro se parties must follow the same rules of procedure that govern
all litigants. See id. This means we will not search the record to construct arguments
on Herrick’s behalf. Id. It is his obligation to present his “contentions and the
reasons for them, with citations to the authorities and parts of the record on which
[he] relies.” Id. at 840-41 (internal quotation marks omitted).
A. Preliminary Matters
Before addressing the merits, we first consider two preliminary matters: 1) the
district court’s exclusion of the unsworn declarations attached to Herrick’s first
sur-reply and 2) his argument that the district court was biased against him.1
1. Evidentiary Ruling
Herrick first contends the district court improperly excluded the unsworn
declarations attached to his first sur-reply, in which friends and family attested to his
1 Herrick also contends the district court’s summary judgment ruling denied him the right of confrontation and a fair trial. He fails to explain, however, where he preserved this argument in the district court. The argument is unavailing in any event. Any trial right he may have had was “not violated by the proper entry of summary judgment, because such a ruling means that no triable issue exists to be submitted to a jury.” Shannon v. Graves, 257 F.3d 1164, 1167 (10th Cir. 2001). 7 Appellate Case: 23-1370 Document: 38-1 Date Filed: 10/01/2024 Page: 8
depression. The district court refused to admit the declarations because they do not
comply with 28 U.S.C. § 1746, which authorizes an unsworn declaration if it is dated
and the declarant subscribed under penalty of perjury that the writing is “true and
correct.” We perceive no abuse of discretion. See Mitchael v. Intracorp, Inc.,
179 F.3d 847, 854 (10th Cir. 1999) (“Like other evidentiary rulings, we review a
district court’s decision to exclude evidence at the summary judgment stage for abuse
of discretion.” (internal quotation marks omitted)). The district court correctly
observed that the declarations cite § 1746, but they do not state they are true and
correct, nor are they dated and signed under penalty of perjury. See Orr v. City of
Albuquerque, 531 F.3d 1210, 1216 n.3 (10th Cir. 2008) (finding no abuse of
discretion in excluding unsworn statements that failed to comply with § 1746).
Although Herrick contends the district court should have allowed the declarations
because he is pro se, his pro se status does not except him from following the same
rules of procedure that govern all other litigants. See Garrett, 425 F.3d at 840.
2. Judicial Bias
Herrick next contends the district judge was biased because he (1) asked Vail’s
counsel if they would move for summary judgment, (2) described the disgruntled
guest as something other than “abusive,” Aplt. Opening Br. at 9, (3) bullied Herrick
to not call a witness, and (4) held a season pass at Vail’s resorts. But there is no
indication Herrick moved to disqualify the district judge as biased, so he has waived
this argument. See Koch v. Koch Indus., 203 F.3d 1202, 1238-39 (10th Cir. 2000).
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B. Merits
Turning to the merits, Herrick offers various arguments that are not tethered to
any particular claim. We liberally construe his pro se brief and consider his
arguments as they relate to his claims that Vail 1) failed to accommodate his
disability, 2) wrongfully terminated his employment, and 3) retaliated.
1. Failure to Accommodate
“To establish a prima facie failure-to-accommodate claim, [Herrick] had to
show: (1) he was disabled; (2) he was otherwise qualified; (3) he requested a
plausibly reasonable accommodation; and (4) Defendant refused to accommodate his
disability.” Dansie v. Union Pac. R.R. Co., 42 F.4th 1184, 1192 (10th Cir. 2022).
The district court determined Herrick failed to establish the first three elements
of his prima facie case. We need only consider the first element—whether Herrick
was disabled. See Punt v. Kelly Servs., 862 F.3d 1040, 1050 (10th Cir. 2017)
(declining to reach remaining elements where plaintiff failed to show a fact issue on
one element). Herrick insists he is disabled because he has depression. Given the
record, we do not question whether he struggles with depression. But, as the district
court explained, for an impairment to be disabling under the ADA, there must be
evidence that it “substantially limits at least one major life activity,” Doebele v.
Sprint/United Mgmt. Co., 342 F.3d 1117, 1129 (10th Cir. 2003); see 42 U.S.C.
§ 12102(1) (defining “disability” as “a physical or mental impairment that
substantially limits one or more major life activities”). Herrick does not address this
requirement or cite any evidence indicating his depression substantially limits a
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major life activity. See Wilkerson v. Shinseki, 606 F.3d 1256, 1262 (10th Cir. 2010)
(“A medical diagnosis is insufficient, rather, the ADA requires plaintiffs to offer
evidence that the extent of the limitation caused by their impairment in terms of their
own experience is substantial.” (internal quotation marks omitted)). Instead, he
concedes he did not obtain medical records indicating he suffered from depression
until after the district court entered judgment. See Aplt. Opening Br. at 5, 11.
Although he attached those records to his opening brief, we cannot consider them
because they were not before the district court. See Verlo v. Martinez, 820 F.3d
1113, 1125-26 (10th Cir. 2016) (recognizing our review is limited to the evidence
that was before the district court).
The only other evidence Herrick cites to show he was disabled is the
deposition testimony of his manager, Cam Eiseman, who remembered Herrick
“making an offhand comment about depression” during the pandemic. R. at 130.
Eiseman did not interpret Herrick’s comment as officially reporting a disability,
however, because, as Eiseman explained, “It was a really tough time of year.
Everyone was depressed. Everyone wasn’t feeling great. . . . ” R. at 131. This
testimony fails to establish that Herrick’s depression was disabling because it does
not indicate whether it limited a major life activity as required to qualify as a
“disability.” And Herrick consistently reported on his Voluntary Self-Identification
of Disability form, “No, I don’t have a disability.” R. at 97, 99, 101 (capitalization
modified). Given this evidence, Herrick fails to show a genuine factual dispute over
whether he was disabled.
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2. Wrongful Discharge
To establish a prima facie case on his wrongful-discharge claim, Herrick had
to show: “(1) [he] was a disabled person as defined by the ADA; (2) [he] was
qualified, with or without reasonable accommodation, to perform the essential
functions of [his] job; and (3) [he] was fired because of [his] disability.” Herrmann
v. Salt Lake City Corp., 21 F.4th 666, 678 (10th Cir. 2021) (brackets and internal
quotation marks omitted). As we explained in the previous section, Herrick failed to
show he was disabled within the meaning of the ADA. Summary judgment was
therefore proper on his wrongful-discharge claim.
3. Retaliation
Last, Herrick contends that after his employment was terminated, he sent
“perfectly legal” emails to Vail employees, and Vail retaliated by banning him from
its properties and obtaining the civil protection order. Aplt. Opening Br. at 13. A
prima facie case of retaliation requires that Herrick demonstrate he “(1) engaged in
protected activity; (2) suffered a material adverse action; and (3) a causal connection
exists between the protected activity and the adverse action.” Herrmann, 21 F.4th
at 679. He may establish a causal connection with “evidence of circumstances that
justify an inference of retaliatory motive, such as protected conduct closely followed
by adverse action.” Proctor v. United Parcel Serv., 502 F.3d 1200, 1208 (10th Cir.
2007) (internal quotation marks omitted).
Herrick cites no authority supporting his premise that his threatening,
post-termination emails constitute protected activity. Further, his retaliation claim
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presupposes that Vail’s actions in banning him from its properties and obtaining a
civil protection order were adverse employment actions. But generally, “only acts
that constitute 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 will rise to the level of an adverse
employment action.” C.R. Eng., Inc., 644 F.3d at 1040 (emphasis added) (brackets
and internal quotation marks omitted). Conduct “that causes harm to future
employment prospects, such as a negative job reference, [also] can be considered an
adverse employment action,” id., but neither the prohibition on Herrick entering Vail
property nor the civil protection order falls into this class of conduct. Rather, the
adverse employment action was the termination of Herrick’s employment. On that
score, the district court explained that Herrick was required to show “he was
‘subjected to an adverse employment action subsequent to or contemporaneous with
the protected activity.’” R. at 679 (quoting Foster v. Mountain Coal Co., 830 F.3d
1178, 1187 (10th Cir. 2016)). Temporal proximity between the protected activity and
the adverse employment action is important because “[a] retaliatory motive may be
inferred when an adverse action closely follows protected activity.” Anderson v.
Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999). Here, however, Herrick’s
employment was terminated before he sent the threatening emails, so even if they
could be considered protected activity, there is no evidence of causation.
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III.
Accordingly, the district court’s judgment is affirmed.
Entered for the Court
Carolyn B. McHugh Circuit Judge