UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ JARED DENNIS, Plaintiff - Appellant,

v. JAIME FITZSIMONS, in his official capacity as Sheriff of Summit County, Colorado, Defendant - Appellee. No. 19-1377 (D.C. No. 1:18-CV -00128-MSK-STV) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , MORITZ , and CARSON , Circuit Judges.

________________ _________________ Although employers cannot di scriminate against disabl ed individuals, both the Americans with Disabilities Act (“ADA” ) and the Rehabilitation Act recognize a distinction between alcoholism the disease and alcohol-related misconduct. Nielsen v. Moroni Feed Co., 162 F. 3d 604, 608–09 (10th Cir. 1998) (collecting cases). Summit County Sheriff Jared Fitzsimons (“the Sheriff”) terminated Plaintiff Jared Dennis for being impaired and unavaila ble as required by the terms of his

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 3, 2021 Christopher M. Wolpert Clerk of Court2 employment. Plaintiff contends the term ination violated the ADA and Rehabilitation Act because the Sheriff fired hi m for being an alcoholic. Under our case law, Plaintiff bore the initial burden of establishing a prima facie case of disability disc rimination. We hold Plainti ff failed to meet his burden because he did not offer affi rmative evidence that the Sheriff terminated him because of his protected status. For th at reason, exercising jurisdiction under 28 U.S.C. § 1291, we affirm the distri ct court’s grant of summary judgment for the Sheriff.
I. In early July 2016, the Summit County Sheriff’s O ffice (“SCSO”) promoted Plaintiff to Detective Sergeant. While he served in th at role, Plaintiff’s wife filed criminal charges against him in neighbor ing Park County, Colorado. When the Sheriff learned of the charges, he put Plain tiff on paid leave. At that time, the SCSO issued Plaintiff a letter notifying him of hi s obligations during paid leave. The letter required Plaintiff to “remain at a pre- arranged place, availa ble by phone beginning Thursday, July 28, 2016 from 0900 hrs to 1700 hrs,” and to call the SCSO commander on and off duty daily. On July 28, Plaintiff reported to the Park County jail for booking and arraignment around 7:00 a.m.—two hours before SCSO expected him to be on duty. Jail personnel gave Plaintiff a Portable Brea thalyzer Test (“PBT”), which revealed a3 breath-alcohol content (“BrAC ”) level of .107—a level indicative of impairment. 1 Over a three-hour period, jail personnel gave Plaintiff two additional PBTs, each of which showed impairment. 2 After the third PBT, ja il personnel postponed his arraignment until the next day because the judge could not arraign Plaintiff while he was legally impaired from alcohol use. Jail personnel kept Plaintiff in custody until that time. Plaintiff did not call the SCSO comma nder as required by the terms of his paid leave status. A corporal from Park Co unty, however, called the SCSO to let the Sheriff know that Plaintiff was in custody and the judge could not arraign him that day because of his elevated BrAC levels. The Sheriff and his staff met by conference call and decided to terminate Plaintiff fo r violating several SCSO policies. The SCSO notified Plaintiff of hi s termination and explained th at he violated four SCSO policies: (1) Conduct 400(III)(A)(9) Private Life: Deputies will behave in a manner that does not bring discredit to the SCSO or themselves; (2) Conduct 400(III)(B)(9)(a)(1) Alcohol Use: An employee shall not consume alcoho l to such a degree that it impairs his on-duty performance;

1 The Summit County Government Hu man Resources Guidelines and Procedures consider a blood alcohol content of 0.05% or greater to be under the influence. And the legal BrAC limit for driving is 0.05 in Colorado.

2 At about 8:03 a.m., Plaintiff blew a . 107. Around 8:52 a.m., he blew a .082. And around 10:45 a.m., he blew a .06.4 (3) Conduct 400(III)(B)(9)(a)(4) Alcohol Use: An employee shall not consume al cohol for a period of eight hours before going on duty; and (4) Internal Affairs 410(VI)(A): Internal Affairs investigative proceedings are confidential personnel issues and shall not be discussed with anyone other than as part of the official investigation. Plaintiff filed a complaint against Defenda nt in his official capacity as Sheriff of Summit County alleging the Sheriff vi olated the ADA and Rehabilitation Act by terminating Plaintiff because of his alcoholism. After some discovery, the Sheriff filed a motion for summary judgment argui ng Plaintiff could not establish a prima facie case of discrimination. The Sherif f maintained he term inated Plaintiff for violating various SCSO polic ies, including being impaired during a paid leave shift and unavailable to the SCSO. For purposes of summary judgment, the district court assumed Plaintiff was disabled, but gr anted the Sheriff’s motion for summary judgment. It determined that Plaintiff fa iled to meet his burden because he had not come forward with evidence showing “that hi s termination was based on his status as a disabled person (as oppos ed to his conduct).”
II. We review the district court’s grant of summary judgment de novo and view the facts in the light most favorable to th e nonmoving party. Ta bor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013) (citing Turner v. Pub. Serv. Co., 563 F.3d 1136, 1142 (10th Cir. 2009)). Summary judgment is appropriate if “there is no genuine dispute as to any material fact and . . . the moving party is entitled to judgment as a5 matter of law.” Fed. R. Ci v. P. 56(a). “[C]onclusory allegations standing alone will not defeat a properly supported motion for summary judg ment.” White v. York Int’l Corp., 45 F.3d 357, 363 (10t h Cir. 1995) (citing Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526, 53 0 (10th Cir. 1994)).
III. We analyze Plaintiff’s claims under the McDonnell Doug las burden-shifting framework because he offers no direct evid ence of discrimination. See Woodman v. Runyon, 132 F.3d 1330, 1339 n.8 (10th Cir. 1997) (“Cases decided under section 504 of the Rehabilitation Act are . . . applicab le to cases brought under the ADA and vice versa, except to the extent the ADA expr essly states otherwise.”); EEOC v. C.R. Eng., Inc., 644 F.3d 1028, 103 8 (10th Cir. 2011) (“If a pl aintiff offers no direct evidence of discrimination, which is ofte n the case, the court applies the burdenshifting analysis articulated by the Suprem e Court in McDonnell Douglas Corp.”). Under this framework, Plaintiff first ha d to establish a prime facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Had he done so, the burden would ha ve shifted to the Sheriff to articulate a legitimate, nondiscriminatory reason for Plaintiff’s termination. Id. Ultimately the burden would then have shifted back to Plaintiff to show the Sheriff’s articulated reason was mere “pretext.” Id. at 804. But because Plaintiff failed to establish a prima facie case of discrimination, our analysis ends there.6 A. To establish a prima facie case of discri mination, a plaintiff must prove: (1) he is a disabled person; (2) he is qualified, with or without reasonable accommodation, to perform the essential functions of hi s job; and (3) his employer discriminated against him because of his di sability. Justice v. Crown Cork & Seal Co., Inc., 527 F.3d 1080, 1086 (10th Cir. 2008) (citing Zwygart v. Bd. Of Cnty. Comm’rs, 483 F.3d 1086, 1090 (10th Ci r. 2007)) (enumerating the prim a facie elements for an ADA discrimination claim); Williams v. Winda ll, 79 F.3d 1003, 1005 (10th Cir. 1996) (citing Pushkin v. Regents of the Univ . of Colo., 658 F.2d 1372, 1387 (10th Cir. 1981)) (enumerating the prima facie elements for a § 504 Rehabilita tion Act claim). To satisfy the third prima facie elem ent, Plaintiff must “present some affirmative evidence that disability was a determining factor” in his termination. 3 Morgan v. Hilti, Inc. , 108 F.3d 1319, 1323 (10th Cir. 1997) (citing Ennis v. Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 59 (4th Cir. 1995)). The affirmative evidence must show that the Sh eriff terminated Plaintiff beca use of his disability or “under circumstances which give rise to an inference that the termination was based

3 “We have held that alcoholism is a disability under the Rehabilitation Act,” and “observed in dicta that the status of being an al coholic may merit protection under the ADA.” Renaud v. Wyo. Dept. of Family Servs., 203 F.3d 723, 729–30 (10th Cir. 2000) (first citi ng Williams, 79 F.3d at 1005; a nd then citing Nielsen, 162 F.3d at 609). Plaintiff offers undisputed evidence that he is an alcoholic and the district court treated Plai ntiff as an alcoholic in its Order Granting Summary Judgment. So for purposes of our analysis we too treat Plainti ff as a person with a disability.7 on [his] disability.” 4 Butler v. City of Prairie Vi ll., 172 F.3d 736, 748 (10th Cir. 1999) (quoting Morgan, 108 F.3d at 1323). Evidence of critical comments about a plaintiff’s disability, or a close tempor al proximity between the employer learning about the disability and taking adverse employment action may give rise to an inference of discrimination. Butler, 172 F. 3d at 749–50 (holding that the third prima facie element was satisfied by evidence of a close temporal proximity between an employee’s request for accommodation, and negative evaluations and complaints about his performance). The burden of pr oducing such evidence is “not onerous,” but “it is also not empty or perfunctory.” Id. at 749 (quoting Ennis, 53 F.3d at 59). Although the ADA and Rehabilitation Act recognize alcoholism as a disability, we distinguish between alcoholism and alcohol-caused misconduct in reviewing whether a plaintiff has establ ished a prima facie case. Ni elsen, 162 F.3d at 608–09. So even though the Acts protect an individu al’s disabled status, they do not protect

4 Since Morgan and Butler, the Supr eme Court has twice suggested that “because of” means “but-for. ” See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009) (ADEA claims); Univ. of Tex. Sw. Med. Cntr. v. Nassar , 570 U.S. 338 (2013) (Title VII retaliation claims). After Gross and Nassar, other circu its determined that courts must evaluate ADA claims under a “ but for” standard. See Murray v. Mayo Clinic, 934 F.3d 1101, 110 (9th Cir. 2019) (collecting cases). But we have not yet made such a determination. And because th e parties failed to address the issue here, we decline to make that determination toda y. See Foster v. Mountain Coal Co., LLC, 830 F.3d 1178, 1191 (10th Cir. 2016) (“In this case, we n eed not determine the extent to which Nassar alters a plaintiff’s burden to prove causation in his prima facie case of ADA retaliation.”) We instead find it su fficient to affirm th e district court under the “more generous” determining factor standard. See Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1002 (8th Cir. 2012). And we “reserve a decision on the meaning of ‘because of’ in the ADA for a case in which the issue is briefed.” Id.8 “unsatisfactory conduct” cause d by alcoholism. Id. Nor do they protect egregious or criminal action “merely becau se the actor has been diag nosed as an alcoholic and claims that such action was caused by his disability.” Williams, 79 F.3d at 1007 (quoting Maddox v. Univ. of Tenn., 62 F.3d 843, 848 (6th Cir. 1995)). An employer does not have “to accept egregious behavior by an alcoholic employee when that same behavior, exhi bited by a nondisabled employee, would require termination.” Id. Under the ADA, an employer can still prohibit an employee from being under the influence of alcohol at the workplace and hold an alcoholic employee “to the same qualificat ion standards for employment” as other employees. 42 U.S.C. § 12114(c); see also id . Similarly, the Rehabilitation Act does not protect alcoholics whose current use of alcohol “prevents [t hem] from performing the duties of the job” or “whose employm ent, by reason of such current alcohol abuse, would constitute a direct threat to property or the sa fety of others .” 29 U.S.C. § 705(20)(C)(v).
B. Plaintiff offers no affirma tive evidence that the Sheriff terminated Plaintiff because he is an alcoholic. In Plaintiff’s vi ew, the fact that the Sheriff (1) knew he had a serious drinking problem and (2) terminated him for showing up drunk to his booking and arraignment, is affirmative ev idence that the Sherif f terminated him for being an alcoholic. But Plaintiff’s argument misses the mark beca use it conflates his disability and the misconduct caused by his over-consumption of alcohol. Far from showing the Sheriff fired Plaintiff because of his disability, th e summary judgment9 record shows the opposite. Ac cording to Plaintiff, SCSO promoted him to Detective Sergeant after learning of the incidents that put the Sheriff on notice of Plaintiff’s serious drinking problem. And despite bei ng on notice for over a year that Plaintiff had a serious drinking problem, Plaintiff offe rs no evidence that th e Sheriff ever took adverse employment action against Plaintiff until he reported to his arraignment and booking impaired. Before the district court, Plaintiff argued that the Sheriff’s justification for terminating him was pretextual. Plaintiff and his fellow deputy, Rob Pearce, were together drinking the night befo re Plaintiff’s arraignment a nd, according to Plaintiff, the Sheriff generally knew the two of them drank a great deal of alcohol when together. But the Sheriff did not give Pearce a breathalyzer test after he learned that Plaintiff showed up drunk for his arraignmen t. Plaintiff claimed this showed pretext because the Sheriff treated Pearce differently by not testing or terminating him. On appeal, Plaintiff’s argument about Pearce has evolved. Plaintiff now appears to argue that the Sher iff’s treatment of Pearce is evidence of discrimination, rather than pretext, and suffi cient to establish a prima faci e case. Because Plaintiff’s argument differs from the one he presented to the district court, he needed to argue for plain error review. United States v. Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019). But Plaintiff did not an d his failure to do so “surely marks the end of the road for an argument for reversal not first presented to the di strict court.” Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011).10 And even giving Plaintiff the benefit of the doubt and assu ming he did argue to the district court that Pearce’s pur portedly different trea tment affirmatively evidenced discriminatory in tent, Plaintiff’s argument w ould still fail. It is fundamental that to prevail on his disparat e treatment argument Plaintiff must show he and Pearce were similarly- situated. Kendrick v. Pens ke Transp. Servs., Inc., 220 F.3d 1220, 1232 (10th Cir. 2000) (A plai ntiff may show disparate treatment “by providing evidence that he was treated di fferently from other similarly-situated, nonprotected employees who violated work ru les of comparable seriousness.”). But Plaintiff cannot meet this burden. In his briefing, Plaintiff does not contest that the PBTs accurately depicted his breath-alcohol le vels. All the same, Plaintiff cries foul because the Sheriff did not give Pearce a breathalyzer test. The Sheriff did not, however, administer or reque st the administration of Pl aintiff’s breathalyzer tests— Park County personnel did. And Plaintiff does not contend Pearce was impaired. In fact, he testified in his deposition that Pear ce did not appear impair ed that morning. And no record evidence reveals that Pearce arrived at SC SO for work that morning with alcohol on his breath or acting in a way that might ha ve triggered suspicion that he was drunk. So even if the Sherif f knew Plaintiff and Pearce were drinking buddies and had been togeth er the night before, the lack of evidence establishing Pearce was drunk that morning precludes him from being a valid comparator for establishing discriminatory in tent. Ultimately, we recognize Plaintiff’s bur den of proving a prima facie case is not onerous, but to prevail he must produce something to show discrimination. He11 has not done so, and his failure to offe r any evidence supportin g a causal connection between his alcoholism and discha rge proves fatal to his claim. 5
AFFIRMED.

Entered for the Court

Joel M Carson III Circuit Judge

5 Plaintiff appears to cont end that the Sheriff’s reas on for terminating him was pretextual because he violated no SCSO policy. But even assuming he did not violate a policy by showing up drunk to his arraignment, Plaintiff’s argument fails because we only reach pretext if Plaintiff establishes a prima facie case. Plaintiff failed to meet his initial burden of esta blishing a prima facie case, so we will not assess whether Defendant’s articulate d reason for terminating Plaintiff was pretextual.