Appellate Case: 21-7055 Document: 010110735614 Date Filed: 09/08/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 8, 2022 _________________________________ Christopher M. Wolpert Clerk of Court SHANE WEBSTER UPCHURCH,
Plaintiff - Appellant,
v. No. 21-7055 (D.C. No. 6:20-CV-00066-RAW) WASTEQUIP, LLC; TRAVELERS (E.D. Okla.) INDEMNITY AMERICA,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HARTZ, KELLY, and HOLMES, Circuit Judges. _________________________________
Shane Webster Upchurch, pro se, appeals the district court’s order granting
Wastequip, LLC’s motion for summary judgment on his claims for discriminatory
discharge under the Americans with Disabilities Act (ADA) and the Age
Discrimination in Employment Act (ADEA), and retaliatory discharge under
Oklahoma’s workers’ compensation laws. He also appeals the denial of his motions
* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 21-7055 Document: 010110735614 Date Filed: 09/08/2022 Page: 2
to amend the complaint to add new claims and a new party. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm.1
I. BACKGROUND
The district court found the following facts undisputed for summary judgment
purposes. Wastequip hired Upchurch as a full-time welder on April 3, 2018. He was
thirty-nine years old at the time he was hired. Two weeks later, on April 17,
Upchurch sustained a work-related injury to his feet when a component he was
welding fell off a table and onto his feet. He was examined for his injuries at the
Family Health Clinic of Southern Oklahoma (FHCSO). Upchurch was next seen at
FHCSO on July 18, when he received an injection in his elbow for an unrelated
complaint.
In October 2018, Upchurch began experiencing numbness and tingling in both
hands. In November, he was tested for carpal tunnel syndrome.
On February 28, 2019, Wastequip placed Upchurch on leave under the Family
Medical Leave Act (FMLA) to have carpal tunnel surgery performed by his doctor at
the Texoma Valley Surgery Center.2 On March 7, his doctor performed a second
surgery to address Upchurch’s carpal tunnel syndrome. There are no work-injury
1 Travelers Indemnity America was named as a defendant but was never properly served. Nonetheless, counsel entered an appearance on behalf of the company as an appellee. 2 The FMLA guarantees the substantive rights of up to twelve weeks of unpaid leave for eligible employees of covered employers for serious health conditions and reinstatement to the former position or an equivalent one upon return from that leave. See 29 U.S.C. §§ 2612(a)(1), 2614(a). 2 Appellate Case: 21-7055 Document: 010110735614 Date Filed: 09/08/2022 Page: 3
reports concerning either the February or March surgeries. On April 17, Upchurch’s
doctor issued written confirmation that he could return to full-work duty, without
restrictions, starting May 1. He returned to work on that date.
Upchurch arrived at work on May 8, 2019, with a swollen hand and arm. He
stated that he did not know what was wrong nor could he recall doing anything that
would have caused an injury. He told the plant manager that his hand and arm were
fine when he left work the previous evening, May 7. The plant manager advised him
to visit his doctor. Upchurch went to Urgent Care Family Care of Calera (UCFCC)
for treatment. He returned to UCFCC for a follow-up appointment on May 15.
Upchurch’s last day of work was May 7.
On May 29, 2019, Upchurch filed a notice of claim for compensation with the
Oklahoma Workers’ Compensation Commission in which he alleged “[c]arpal
tunnel” injury to “both hands & arms” resulting from “[h]eavy repetitive mo[ti]on,
[l]ifting.” R. at 180.
Although Upchurch’s FMLA benefits expired on May 30, 2019, he failed to
inform Wastequip when he would return to work. By June 5, he had reached the
maximum number of allowable unexcused absences under the company’s attendance
policy. On or about June 9, Wastequip’s vice president of human resources called
Upchurch to find out when he planned to return to work or if he had any upcoming
doctor appointments. Upchurch failed to provide any updates. Wastequip terminated
his employment the following day in accordance with its attendance policy.
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II. DISTRICT COURT PROCEEDINGS
Upchurch filed suit in March 2020, alleging claims under the ADA, ADEA,
and retaliatory discharge under Oklahoma’s workers’ compensation laws. Nearly six
months after Wastequip filed its answer, Upchurch moved to amend his complaint to
add claims under the Equal Pay Act (EPA), 29 U.S.C. § 206(d)(1); the Genetic
Information Nondiscrimination Act (GINA), 42 U.S.C. § 2000ff-1(a)(1), (2); and the
Fourth Amendment, U.S. Const. amend IV. Wastequip objected and moved to strike
the motion. As grounds, it cited Upchurch’s failure to attach a proposed amended
complaint to the motion in violation of the local rules, the futility of the proposed
amendment, and undue delay.
While Upchurch’s motion to amend was pending, he filed a motion to “Add
Party to Action.” R. at 154. In this motion, he sought “to add party RAW to [this]
action, [to include] ALL defendants who have infiltrated [Upchurch’s] family,
home, body, life, doctor visits with the[ir] 5G mind-altering reading technology
hologram . . . to protect HUMAN SCUM Wastequip, Traveler’s Ind. America, [and
the] Worker’s Comp. Commission.” Id. “RAW” is an apparent reference to the
presiding judge. Wastequip opposed the motion. Again, Upchurch failed to attach a
proposed amended complaint.
Not long thereafter, Wastequip filed a motion for summary judgment. In
response, Upchurch filed a two-page “Motion to Deny Summary Judg[]ment,” in
which he laid out an unsubstantiated summary of his claims. Id. at 206-07. A month
later, he filed a document titled “Supplemental to Denial of Defendant’s Summary
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Judg[]ment Motion,” which was a hand-written timeline of events accompanied by a
number of unidentified and unauthenticated materials. Suppl. R. at 3. As grounds
for the untimely filing, Upchurch accused Wastequip of molestation, rape, torture,
and hate crimes, and further alleged that the company held him at gunpoint and then
stole his cell phone and prescription medications to hinder his ability to respond to
summary judgment. Wastequip moved to strike the supplement as untimely and
inappropriate. In response to the motion to strike, Upchurch accused Wastequip of
killing his dog and, employing obscene language, asked the court to “set a trial
date . . . ASAP[.]” Id. at 70. The court struck the response under Fed. R. Civ. P.
12(f), which provides that “[t]he court may strike from a pleading . . . any redundant,
immaterial, impertinent, or scandalous matter.” In a later order, it sua sponte struck
Upchurch’s Supplemental Denial on the grounds that it contained “abusive [and]
offensive language,” R. at 215, granted Wastequip’s motion for summary judgment,
and denied the motions to amend the complaint.
III. LEGAL FRAMEWORK
A. ADA
The ADA provides that “[n]o covered entity shall discriminate against a
qualified individual on the basis of disability in regard to . . . the . . . discharge of
employees.” 42 U.S.C. § 12112(a). “ADA discrimination claims are generally
subject to the [three-step] McDonnell Douglas burden-shifting framework adapted
from Title VII discrimination caselaw.” Kilcrease v. Domenico Transp. Co.,
828 F.3d 1214, 1220 (10th Cir. 2016).
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At step one, “a plaintiff carries the burden of raising a genuine issue of
material fact on each element of his prima facie case.” Id. (internal quotation marks
omitted). To establish a prima facie case,
a plaintiff must demonstrate: (1) that [he] is . . . disabled . . . within the meaning of the ADA; (2) that [he] is . . . able to perform the essential functions of the job, with or without reasonable accommodation; and (3) that the employer terminated [his] employment under circumstances which give rise to an inference that the termination was based on [his] disability. Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (citations omitted).
The ADA defines the term “disability” as “(A) a physical or mental impairment
that substantially limits one or more major life activities of such an individual;
(B) a record of such an impairment; or (C) being regarded as having such an
impairment.” 42 U.S.C. § 12102(1).
“If plaintiff establishes a prima facie case, the burden shifts to the defendant
[at step two] to offer a legitimate nondiscriminatory reason for its employment
decision.” Kilcrease, 828 F.3d at 1220 (internal quotation marks omitted). And at
step three, “[i]f defendant articulates a nondiscriminatory reason [for its actions], the
burden shifts back to plaintiff to show a genuine issue of material fact as to whether
the defendant’s reason for the adverse employment action is pretextual.” Id. (internal
quotation marks omitted).
B. ADEA
Under the ADEA, it is “unlawful for an employer . . . to fail or refuse to hire
or to discharge any individual or otherwise discriminate against any individual with
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respect to his compensation, terms, conditions, or privileges of employment, because
of such individual’s age.” 29 U.S.C. § 623(a)(1). “To establish a disparate-treatment
claim under the plain language of the ADEA . . . a plaintiff must prove that age was
the ‘but-for’ cause of the employer’s adverse decision.” Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167, 176 (2009). In the absence of direct evidence of age
discrimination, we apply the three-step burden-shifting analysis set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Jones v. Okla. City
Pub. Schs., 617 F.3d 1273, 1278 (10th Cir. 2010).
To prove a prima facie case at step one, a plaintiff must show: “1) []he is a
member of the class protected by the ADEA; 2) []he suffered an adverse employment
action; 3) []he was qualified for the position at issue; and 4) []he was treated less
favorably than others not in the protected class.” Id. at 1279 (brackets and internal
quotation marks omitted). If the plaintiff succeeds, “the burden of production then
shifts to the employer to identify a legitimate, nondiscriminatory reason for the
adverse employment action. Once the employer advances such a reason, the burden
shifts back to the plaintiff to prove the employer’s proffered reason was pretextual.”
Id. at 1278 (citation omitted).
C. Retaliation
Oklahoma law provides that “[a]n employer may not retaliate against an
employee when the employee has in good faith[] [f]iled a claim [under the Workers’
Compensation laws].” Okla. Stat. tit. 85A, § 7 (2019). The Workers’ Compensation
Commission has exclusive jurisdiction to hear and decide such claims. See Southon
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v. Okla. Tire Recyclers, LLC, 443 P.3d 566, 573 (Okla. 2019) (holding “[t]he
Legislature explicitly gave the Workers’ Compensation Commission sole jurisdiction
to oversee wrongful termination claims that arise from an underlying Workers’
Compensation Claim, . . . and . . . the . . . Commission is fit to adequately protect
Oklahoma public policy in this area”).
IV. STANDARD OF REVIEW
A. Summary Judgment
We review the district court’s grant of summary judgment de novo, “applying
the same legal standard as the district court.” Williams v. FedEx Corp. Servs.,
849 F.3d 889, 895 (10th Cir. 2017). Summary judgment is appropriate if “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).
Although “[w]e view the evidence and draw reasonable inferences in the light
most favorable . . . to the nonmoving party,” Williams, 849 F.3d at 896, “[f]or
dispositive issues on which the plaintiff will bear the burden of proof at trial, he must
go beyond the pleadings and designate specific facts so as to make a showing
sufficient to establish the existence of an element essential to his case in order to
survive summary judgment,” Cardoso v. Calbone, 490 F.3d 1194, 1197 (10th Cir.
2007) (brackets and internal quotation marks omitted). “Unsubstantiated allegations
carry no probative weight in summary judgment proceedings.” Id. (internal quotation
marks omitted).
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If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may . . . grant summary judgment if the motion and supporting materials— including the facts considered undisputed—show that the movant is entitled to [summary judgment]. Fed. R. Civ. P. 56(e)(3). However, “[i]f a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts essential to justify its
opposition, the court may: (1) defer considering the motion or deny it; (2) allow time
to obtain affidavits or declarations or to take discovery; or (3) issue any other
appropriate order.” Id. at 56(d).
B. Motions to Amend
A motion to amend a complaint is governed by Fed. R. Civ. P. 15(a), which
sets out the methods available for amending pleadings before trial. Because more
than twenty-one days had elapsed between the time Wastequip filed its answer and
Upchurch filed the motions to amend, he could add new claims or parties only by
leave of court or with Wastequip’s written consent. See id. at 15(a)(2). Relevant
here, Local Civil Rule 7.1(k) for the United States District Court for the Eastern
District of Oklahoma provides that “[a]ll motions to amend shall be accompanied by
a proposed order submitted pursuant to the ECF Policy Manual which specifically
sets forth what is being amended. The movant also shall attach to the motion a copy
of the signed, proposed amended pleading.”
“Where the party seeking amendment knows or should have known of the facts
upon which the proposed amendment is based but fails to include them in the original
complaint, the motion to amend is subject to denial.” Las Vegas Ice & Cold Storage
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Co. v. Far W. Bank, 893 F.2d 1182, 1185 (10th Cir. 1990) (internal quotation marks
omitted). Moreover, “[a] proposed amendment is futile if the complaint, as amended,
would be subject to dismissal.” Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir.
2004) (internal quotation marks omitted).
“We review for abuse of discretion the district court’s denial of [a] motion to
file an amended complaint.” Cohen v. Longshore, 621 F.3d 1311, 1313 (10th Cir.
2010). “Under the abuse of discretion standard, a trial court’s decision will not be
disturbed unless we have a definite and firm conviction that the lower court has made
a clear error of judgment or exceeded the bounds of permissible choice in the
circumstances.” Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1164 (10th Cir. 1998)
(brackets and internal quotation marks omitted).
Although we generally review for abuse of discretion a district court’s denial of leave to amend a complaint, when this denial is based on a determination that amendment would be futile, our review for abuse of discretion includes de novo review of the legal basis for the finding of futility. Cohen, 621 F.3d at 1314 (internal quotation marks omitted).
V. DISCUSSION
The district court found that Wastequip was entitled to summary judgment.
As to the ADA claim, the court found that Upchurch “has not provided proof of any
impairment, whether occurring prior to or during his employment with Wastequip[,]
which meets the standard of substantially limiting a major life activity.” R. at 213.
Rather, “[t]he only restriction presented limiting [his] work were those related to his
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carpal tunnel surgeries[,] which were lifted as of May 1[], 2019 without restriction.”
Id. With regard to the ADEA claim, the court found that Upchurch failed to come
forward with any evidence that he was treated less favorably than others who were
not in the protected class or that age was a factor in Wastequip’s decision to
terminate his employment. The court further determined that the Workers’
Compensation Commission had exclusive jurisdiction to decide the retaliation claim.
Upchurch does not raise any substantive argument that the district court erred
by granting summary judgment based on the evidence it had before it. Instead, he
argues that “it was error [for the district court] to grant summary judgment to
[Wastequip] where [he,] the pro se plaintiff[,] was not given any opportunity to
engage in discovery.” Aplt. Opening Br. at 2. To be sure, Fed. R. Civ. P. 56(d)
provides that a nonmovant can ask the district court for the opportunity to conduct
discovery to adequately respond to summary judgment; however, Upchurch never
made any such request, and having failed to do so, the court did not abuse its
discretion in granting summary judgment. “[W]here a party opposing summary
judgment fails to take advantage of the shelter provided by Rule 56[(d)] . . . there is
no abuse of discretion in granting summary judgment if it is otherwise appropriate.”
Campfield v. State Farm Mut. Auto Ins. Co., 532 F.3d 1111, 1125, (10th Cir. 2008)
(ellipsis and internal quotation marks omitted). Summary judgment was appropriate
here.
Nor does Upchurch’s pro se status excuse his failure to ask for discovery.
“Although a pro se litigant’s pleadings are to be construed liberally and held to a less
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stringent standard than formal pleadings drafted by lawyers, this court has repeatedly
insisted that pro se parties follow the same rules of procedure that govern other
litigants.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.
2005) (brackets, citation, and internal quotation marks omitted). Here, Upchurch
never alerted the court to the need for any discovery.
We also reject Upchurch’s further argument that the “mass of documentation
[he tendered to the district court] in what he believed was the mandatory disclosure
requirements of [Fed. R. Civ. P. 26] . . . should have been considered in opposition to
summary judgment.” Aplt. Opening Br. at 10-11. Although he fails to specify the
nature of these documents, they appear to be a box of documents that he submitted in
conjunction with his “Motion for Violation of Conscience,” which the court found
were “incomprehensible with respect to any claim brought herein,” and ordered them
returned to Upchurch. R. at 4.
We find no abuse of discretion in the district court’s denial of Upchurch’s
motions to amend, which were facially deficient. First, Upchurch maintains that
“[t]he proposed amended complaint contains sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.” Aplt. Opening Br. at 13
(brackets and internal quotation marks omitted). But the motions did not include
proposed amended complaints as required by the local rule, which makes it
impossible to evaluate the viability of the proposed amendments. Second, setting
aside Upchurch’s failure to comply with the local rule, he fails to explain how the
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proposed new claims were based on facts that were unavailable to him at the time he
filed the original complaint or how they set forth viable claims for relief under the
EPA, GINA, or Fourth Amendment. Last, he fails to explain how his proposed new
defendant was involved in the decision to terminate his employment. Although a
pro se plaintiff’s pleadings are entitled to some allowances, “the court cannot take on
the responsibility of serving as the litigant’s attorney in constructing arguments and
searching the record.” Garrett, 425 F.3d at 840.
VI. CONCLUSION
The judgment of the district court is affirmed.
Entered for the Court
Paul J. Kelly, Jr. Circuit Judge