PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ EUGENE FOSTER, Plaintiff - Appellant, and ROBERT FISK, Plaintiff,

v. MOUNTAIN COAL COMPANY, LLC; ARCH WESTERN RESOURCES, LLC; ARCH COAL, INC., Defendants - Appellees. No. 15-1025

________________ _________________ Appeal from the United States District Court for the District of Colorado (D.C. No. 1:12-CV-03341-LTB-MJW)

________________ _________________ Damon J. Davis (J. Keith Killia n, with him on the briefs) Killian Davis Richter & Mayle, P.C., Grand Junction, Colora do, for Plaintiff-Appellant. Jeffrey T. Johnson (Bradford J. Williams, and Stephen G. Masciocchi, with him on the brief) Holland & Hart, LLP, Denver, Colorado, fo r Defendants-Appellees.

________________ _________________ Before LUCERO , MATHESON , and PHILLIPS , Circuit Judges.

________________ _________________ PHILLIPS , Circuit Judge.

________________ _________________ FILED United States Court of Appeals Tenth Circuit 

### July 26, 2016
Elisabeth A. Shumaker Clerk of Court2 Eugene Foster appeals from a district -court order granting summary judgment in favor of Mountain Coal Company, LLC (Mountain Coal) on his retaliation claims under the Americans with Disabilitie s Act (ADA), 42 U.S.C. § 12203(a). Specifically, Foster appeals the district court’s dispositive conclusion that his requests for accommodation were inadequate and untimely. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and re mand to the district court for further proceedings. 1
FACTUAL BACKGROUND In November 2004, Foster began working at Mountain Coal’s West Elk Mine (West Elk) in Colorado. On February 5, 2008, while working as a long-wall maintenance supervisor, Foster turned hi s head quickly and felt a pop in his neck. Because his neck was still hurting the next day, Foster sought care at the Delta County Memorial Hospital emergency room . After receiving treatment, Foster had the emergency-room doctor complete a retu rn-to-work form that detailed Foster’s injury, excused Foster from work on February 6 and 7, and authorized Foster to return to work on February 8. Although he ordinarily would have returned to work on February 8, Foster had a regularly scheduled week off beginning that day and

1 On January 11, 2016, Arch Coal, Inc. , which through multiple subsidiaries owns all of Mountain Coal and Arch West ern Resources, LLC, filed for Chapter 11 bankruptcy in the United States Bankruptcy Court for the East ern District of Missouri. In response, unde r 11 U.S.C. § 362, we abated the appeal until the automatic bankruptcy stay ha d been lifted. On July 5, 2016, the Bankruptcy Court lifted the stay under § 362(d) for the limi ted purpose of allowi ng us to issue the opinion in this appeal. On July 7, 2016, we lifted the abatement and now issue this opinion.3 continuing until February 15. And Foster had already scheduled a hernia operation for February 15 that required a recovery period extending until March 28. In all, Foster missed work from February 6 to March 28. A. Mountain Coal Rejects Orig inal Return-to-Work Form On February 10, Ed Langrand, the Mana ger of Human Resources at Mountain Coal, called Foster to a me eting with West Elk manage ment to discuss the neck injury. Foster testified that sometime dur ing the meeting, a We st Elk work-safety manager “jumped out of his chair and stated he had talked to so-and-so in St. Louis, and this was not going to be a workmen’s co mp accident.” Appellant’s App. vol. 2 at 412. Although Foster was surprised by th e safety manager’s outburst, the meeting continued. Langrand, along with other senior ma nagers at West Elk, recommended that Foster see Dr. Thomas Dwyer, an orth opedic specialist, about his neck. During the meeting, Foster provided Langrand the return-to-work form that the emergencyroom doctor had completed. But Langrand rej ected the form, directing Foster to have a doctor complete a Mo untain Coal return-to-work fo rm as company policy required. Foster agreed that he woul d do so when he went to the hospital for his hernia operation on February 15.
B. The Disputed Return-to-Work Form During his deposition, Foster testified about his efforts to get a doctor to complete the Mountain Coal return-to-work form for his neck injury during his hospital stay from February 15 to February 17. Specifically, Foster asked his fiancée to get the form filled out by the emer gency-room doctor who had seen him on4 February 6. This effort failed when the em ergency-room doctor declined to complete Mountain Coal’s forms. Faced with this, Foster told Langran d that the emergenc y-room doctor had refused to complete Mountain Coal’s form. In response, Langrand told Foster to have Dr. Dory Funk—Foster’s primary-care do ctor—complete Mounta in Coal’s form. Foster attempted to do so. Bu t when Foster arrived at Dr . Funk’s office, he learned that Dr. Funk was on vacation. Facing that impediment, he left the blank Mountain Coal form with an office receptionist, who told Foster she would “see about getting it filled out when Dr. Funk re turned” and would call Foster to report any developments. Appellant’s App. vol. 5 at 959. About a week later, someone from Dr. Fu nk’s office called Fo ster to tell him he could pick up the completed form. Accord ing to Foster, he then retrieved the form and took it straight to the West Elk office. Nobody was at the West Elk office except a receptionist whom Foster di d not know. After waiting for an hour and a half, Foster got an envelope from his truck, put the comp leted form in the enve lope, and left it on the desk of a human-resources clerk, Sandra White. Foster further testified that, while speaking by telephone with a Mountain Co al employee regarding his disability benefits on March 13, he also spoke with White, who told him she had not received the form and needed him to provide anothe r one. Apparently, five days after talking to White, Foster again went to Dr. Funk’s office, obtained another form that Dr. Funk dated and signed on March 18, and soon afterward dropped off the form at West Elk.5 At this point in Foster’s deposition, the attorneys repr esenting Foster and Mountain Coal both agreed to discontinue Foster’s depos ition because he had become incoherent after ingesting his pain medication. When Foster’s deposition resumed two months later, Foster testified differe ntly about what occurre d after he allegedly placed the Mountain Coal form on White’s desk. This second time, Foster testified that Langrand had told him to obtain the completed form on March 17—not that White told him to obtain the completed form on March 13. Under this acc ount, Foster testified that he understood that White had not received the completed form Foster left on her desk, but appa rently White never told him to obtain a new one. Instead, on Ma rch 17, Langrand told Foster to return a completed form to Mountain Co al. Foster testified that he went to Dr. Funk’s office the day after speaking with Langrand; ob tained a second completed form, dated March 18; and took it to West Elk. Mountain Coal acknowledges that it received this completed return -to-work form. C. Foster Visits with Dr. Dwyer On March 10, at Mountain Coal’s direc tion, Foster met with Dr. Dwyer about his neck pain. After Foster’s initial examination, Dr. Dwyer set out to learn more about Foster’s condition by reviewing one of Foster’s previous MRIs, by ordering another MRI, and by obtaining the treatm ent notes of Dr. Karen Nelson, who had given Foster injections to help alleviate pain. On March 24, Foster returned to Dr. Dwyer’s office for a second sche duled office visit. By then, Dr. Dwyer had received the earlier MRI records and the results fr om the additional MRI, but still had not6 received Dr. Nelson’s injection notes. Afte r reviewing the MRIs, Dr. Dwyer wrote in his notes that he doubted that he would “ev er recommend surgery to address all of the degenerative changes in [Fos ter’s] spine,” but th at with more in formation “a more limited surgical intervention could potentially be appr opriate” after “significant consideration and discuss[ions with Foster ] about expectations.” Appellant’s App. vol. 8 at 1631–32. Before proceeding further, Dr. Dwyer still wanted to obtain Dr. Nelson’s notes and to visit more with Fost er about treatment options. Foster’s next appointment with Dr. Dwyer was set for April 4.
D. April 3 Meeting On March 31, Foster returned to wo rk after his hernia-operation doctor provided him a Mountain Coal return-to-wo rk form on March 25. The form excused Foster from work from February 15 until March 28. 2 On April 3, Jim Miller, General Manager at West Elk, called Foster into a meeting with himself and Jon Wilson, a human-resources employee. Fost er testified that the Apr il 3 meeting proceeded as follows: Q: What was said at the meeting, and by whom? A: Jim Miller said, “I called Dr . Funk and he says he has not seen you over this neck thi ng,” however he said it. And something about, “You have not been to see Dr. Funk. We called and talked to him. So you’re on suspension until we can figure it out.”

2 This return-to-work form covered the dates Foster missed work for his hernia operation and recovery. The neck injury had its own return-to-work form, dated March 18, which Foster provided to Mount ain Coal before returning to work on March 31.7 Q: What did you say? A: I said, “I told you over a nd over that I haven’t seen Dr. Funk, but you all keep aski ng for a back-to-work slip from Dr. Funk. Dr. Funk hasn’t seen me.” Q: And what did Mr. Miller, or anyone else, say? A: Jim just shook his head . Kevin Jensen [West Elk’s maintenance superintendent] di d walk in at that point. Q: Okay. A: Because Jim said, “Well, Dr . Funk said he hasn’t seen you.” And I said, “Well, that’s what I keep telling you, I haven’t seen Dr. Funk.” And I said, “You sons-a-bitches has been trying to get rid of me for the last year, one way or another.” And I said, “Y ou all are using any excuse you all can to get me out of here.” And I asked Kevin again, I said, “I’ve got retr aining this week. And I’ve got surgery scheduled—going to see the doctor [Dr. Dwyer] and schedule surgery for Frid ay—on Friday. I need to get these took care.” He says, “Y ou’re on suspension. Don’t do nothing.” Q: All right. Let me see if I understand what you said. You said you had retraining scheduled for next week; is that right? A: The next day. Q: For the next day?
A: Yes. Q: And then you said you had surgery scheduled for— A: I had an appointment with the doctor to schedule surgery. Q: And you were refe rring to Dr. Dwyer?
A: Yes.8 Q: For the next day? A: Yes. All I asked was a little cooperation. No, they— nothing. Appellant’s App. vol. 2 at 420–21. We now turn to Mountain Coal’s account of the April 3 meeting. 3 Mountain Coal acknowledges that two weeks before the meeting Foster had provided it with Dr. Funk’s completed return -to-work form, dated March 18. Even so, Mountain Coal remained unsatisfied. Jensen testified that during the meeting Miller told Foster that Mountain Coal had called Dr. Funk’s offi ce about the first return-to-work form Foster claimed to have earli er placed on White’s desk. M iller told Foster that Dr. Funk’s office didn’t have a copy of any such form. Jensen testified that he remembered Miller telling Foster that Foster’s actions rela ted to the earlier return-towork form had put the mine in a “precarious situation.” Appellant’s App. vol. 3 at 560. Neither Jensen nor Miller explained wh at Miller meant by this. According to Jensen, Miller, and the memorandum, Foster then told the managers, “I’m not lying to you. You know I’m not lying to you.” Id. at 561. Miller responded, “The facts tell us otherwise.” Id. The managers suspended Fost er indefinitely, pending an investigation into whether Foster had indeed lied about providing an earliercompleted form. Miller testified that Fost er said, “You can fire me tomorrow but it

3 The testimony of the Mountain Coal managers—Miller, Wilson, and Jensen—was consistent with an unda ted and unsigned memorandum that Miller believes Wilson wrote shortly after the Apr il 3 meeting. Kevin Je nsen, who was also present at the meeting, te stified that the memorandum accurately recounted what happened.9 won’t be for lying,” and noted that Fost er “probably” told the managers that Mountain Coal was “just trying to ge t rid of me because I’m a liability.” 4 Appellant’s App. vol. 6 at 1367. Here it is worth pausing to note the dramatic difference be tween the parties’ accounts of what happened at the April 3 m eeting. Foster contends that Mountain Coal suspended him because he had obtained the March 18 return-to-work form from Dr. Funk, who had never pers onally examined Foster for his neck injury. Mountain Coal maintains it suspende d Foster because it believed that he had lied about obtaining and delivering the earlier return-to- work form—the one Foster testified that he placed on White’s desk. Later on April 3, Miller, Wilson, and Je nsen called Dr. Funk ’s office to ask again about the missing form Foster said that he had placed on White’s desk. During

4 While working for Mountain Coal, Foster had medical issues that had kept him from work even before his neck an d hernia problems. On June 6, 2006, for example, Foster underwent surgery for a “right carpal tunnel release” and “ulnar neurolysis, right elbow, with anterior transposition of ulnar nerve” to treat his diagnosed “right carpal tunnel syndrome” and “right cubita l tunnel syndrome.” Appellant’s App. vol. 7 at 1574. Foster was able to return to wo rk on July 5, 2006, with restrictions on his work activities. On July 18, 20 06, Foster underwent surgery for a “left carpal tunnel releas e” and “neurolysis of the ul nar nerve, left elbow with anterior transposition” to treat his diagnos ed “left carpal tunnel syndrome” and “left cubital tunnel syndrome.” Appellant’s App. vol. 1 at 163. The record contains a work-release form that allowed Foster to re turn to work on Dece mber 6, 2006, with certain restrictions, although it is unclear whether he was able to return to work before December 6. These restrictions resu lted from Foster’s carpal-tunnel surgery (it is unclear which surgery, although the hard-to-read fo rm seems to say “bilateral carpel tunnel release,” referr ing to both surgeries) a nd restricted Foster from (1) lifting objects over 20 pounds , (2) wearing a hard-hat, and (3) wearing a tool belt. Id. at 169. It appears Mountain Coal acc ommodated Foster’s surgeries by moving him from his position as a long-wall mainte nance supervisor to the position of maintenance planner, which was less physically demanding.10 the call, Dr. Funk’s office ma nager told them that Foster must have picked up the completed form on March 18 b ecause Dr. Funk’s office had not received the hospital records from Foster’s emergency-room vi sit until March 17. Along this same line, Dr. Funk testified that he would have pref erred to have the hospital records before filling out the form.
E. Dr. Dwyer Does Not Recommend Surgery On April 4, Foster attended his sche duled follow-up appointment with Dr. Dwyer. Foster reported that hi s neck condition had worsened after he had returned to work for three days and that “he was unab le to work anymore due to significant increase in his pain.” Appella nt’s App. vol. 8 at 1637. Despite Foster’s worsened condition, Dr. Dwyer was uncertain that su rgery was the proper treatment if Foster continued working the same job. Specifi cally, having now obtained Dr. Nelson’s notes, Dr. Dwyer summarized his assess ment of Foster’s condition in his contemporaneous treatment notes : “At this point I am not certain that any surgery is really warranted.” Id. at 1642. Dr. Dwyer “doubt[ed] that [he] would recommend carrying out” even a relatively minor surgical procedure “a nd then have [Foster] go back to work activities which, obviously, significantly aggravate all of his symptoms.” Id. at 1644. Dr. Dwyer also wrote in hi s notes that he thought “it would probably be in [Foster’s] be st interest to consider different work activities.” Id. at 1645. Dr. Dwyer remembered discussing th ese conclusions and recommendations with Foster during the April 4 appoint ment. At the end of the appointment, Foster11 said he would consider his treatment op tions and would see Dr. Dwyer on an asneeded basis.
F. Dr. Funk Believes That Foster Is Disabled On April 9, Foster visited Dr. Funk “to try and straighten out what is going on with his neck and concerns over potential disability.” Appellant’s App. vol. 6 at 1194. Dr. Funk concluded that Foster “should be consider ed disabled from his usual occupation at the mine secondary to his cervical [degenerativ e joint disease].” Id. at 1196. Dr. Funk did not specifically recomme nd surgery, since that option exceeded his area of expertise. Although Foster ca nnot remember many specific details of his April 9 visit with Dr. Funk, he does reca ll that Dr. Funk would not write a letter detailing Foster’s injuries and disabled status until Dr. Funk received Dr. Dwyer’s notes from Foster’s April 4 appoi ntment. Eventually, on April 11, Dr. Funk wrote a letter stating that Foster was “undergoing evaluation and will probably have surgery” and “should not return to his usual occupa tion until [his] medical issue is resolved.” Appellant’s App. vol. 1 at 231. Meanwhile, according to the deposition te stimony of Mountain Coal’s senior managers, they had decided on April 9 to terminate Fost er’s employment. Although Langrand and Miller both testified that Mountain Coal terminated Foster’s employment because Foster had lied about th e return-to-work form he said he had left on White’s desk, Jensen testified that Mountain Coal term inated his employment because Foster “did not present us w ith a correct Return -To-Work Form.” Appellant’s App. vol. 3 at 513. When asked to expand on his meaning, Jensen12 testified that Foster “didn’t have the ri ght date for his rel ease and stuff on it.” Id. at 514. Langrand testified that, on April 9, Mille r called Foster to fire him, but Langrand conceded that Mountain Coal ha d no record of any such call. Miller testified that he tried to call Foster on eith er April 9 or April 10, but he also had no record of such a call. Although Foster did not specifically remember receiving a phone call from Miller on April 9 or Apr il 10, Daniel Kunde, Foster’s direct supervisor at West Elk, memorialized an April 11 telephone conve rsation he had with Foster in an e-mail dated April 12 in whic h Kunde noted that Foster said Miller had tried calling Foster on April 10 but th at Foster had missed the call. G. Foster Notifies Mountain Coal About His Disability The parties dispute what occurred on April 11. Foster testified that he went to Dr. Funk’s office and picked up Dr. Funk’s letter sayi ng that Foster likely would need surgery and should not continue doing th e same work. Foster first testified that at about 6:30 p.m. he called Kunde and read him Dr. Funk’s letter. In an e-mail to Langrand and Miller the next day, Kunde mentioned this same timing and content of the call. But Foster later test ified that he had picked up th e letter at Dr. Funk’s office at about 9:30 a.m. or 10:00 a. m. and called Kunde about thir ty minutes later to read it to him. Foster relied sole ly on his memory as support for his calling Kunde at 9:30
a.m. or 10:00 a.m. Mountain Coal agrees with Foster that , before the telephone call on April 11, Kunde knew nothing about Foster’s susp ension or termination. To support his13 argument that Mountain Coal had not fired him by April 11, Foster testified that Kunde would have been “the first to know” about his terminati on because Kunde was his immediate supervisor and “[t]hat’s just the way management works.” Appellant’s App. vol. 2 at 422. Dr. Funk also testified about the events of April 11. Dr. Funk testified that he believed that his transcription service w ould have faxed the April 11 letter to his office before he signed it. The fax notation on the letter shows that Dr. Funk’s office received the transcribed letter at 1:58 p.m., alt hough nothing in the record establishes that the fax machine’s time setting was accurate. Dr. Funk testified that the transcription service commonly faxed unsigne d letters to him, which he would then sign and put into an outbox for mailing. If Dr. Funk’s testimony is correct, Foster could not possibly have picked up the sign ed April 11 letter between 9:30 a.m. and 10:00 a.m. on April 11. We note that Dr. Funk testified regarding these facts and practices after reviewing the April 11 letter and various other case documents. Even with this review, however, he testified th at he did not remember receiving the April 11 letter via fax from the transcription servi ce, signing the letter, or seeing Foster pick up the letter from the office.
H. Mountain Coal Terminates Foster’s Employment On April 14, Foster received a mailed letter terminating hi s employment with Mountain Coal. The letter, dated April 11, terminated Foster’s employment “effective April 9” because Foster “gav e false information as to a credible Return To Work Slip.” Appellant’s App. vol. 1 at 230. We cannot know what date the letter was14 actually mailed (whether on April 11 or afterw ard) since the postmarked envelope is not in the record. Nor has Mountain Coal offered any testimony ab out when the letter was signed and deposited in the mail. PROCEDURAL HISTORY After Mountain Coal terminated his em ployment, Foster filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) and the Colorado Civil Rights Divi sion. Ultimately, the EEOC issued Foster a right-to-sue notice, and on December 26, 20 12, Foster filed a complain t against Mountain Coal. Foster sought relief under the ADA and Colorado law. On the briefs, the district court entered summary judgment for Mountain Coal on Foster’s ADA and state-law discrimination claims and on Foster’s ADA retaliation claims. Foster appeals the dismissal of his ADA retaliation claims. DISCUSSION Foster contends that the district c ourt erred in granting Mountain Coal’s motion for summary judgment on his ADA retaliation claims. We review de novo the district court’s grant of summary judgment. Proctor v. United Parcel Serv. , 502 F.3d 1200, 1205 (10th Cir. 2007). “In reviewing the record, we view all evidence and draw reasonable inferences therefrom in the li ght most favorable to the nonmoving party.” Id. “Summary judgment is onl y appropriate when there are no genuine issues of material fact and the movi ng party is entitled to judgm ent as a matter of law.” Hennagir v. Utah Dep’t of Corr. , 587 F.3d 1255, 1261 (10th Cir. 2009). “A fact is material only if it might affect the outco me of the suit under the governing law. And15 a dispute over a material fact is genuine only if the eviden ce is such that a reasonable jury could return a verdic t for the nonmoving party.” Bennett v. Windstream Commc’ns, Inc. , 792 F.3d 1261, 1265–6 6 (10th Cir. 2015) (c itations and quotation marks omitted). The ADA’s retaliation statute provides th at “[n]o person shall discriminate against any individual because such individual has oppose d any act or practice made unlawful by this chapter or b ecause such individual made a charge, testifie d, assisted, or participated in any manner in an inves tigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a). Initially , we need to distinguish between the elements of an ADA retaliation claim and an ADA discrimi nation claim. To prosecute an ADA discrimination claim, a plai ntiff must show that he is a “qualified individual with a disability.” See Davidson v. Am. Online, Inc. , 337 F.3d 1179, 1188 (10th Cir. 2003) (quoting 42 U. S.C. § 12112(a)). But to prosecute an ADA retaliation claim, “a plaintiff need not show that [] he suffers from an ac tual disability.” Selenke v. Med. Imaging of Colo. , 248 F.3d 1249, 1264 (10th Cir. 2001). Rather, on this point, the plaintiff need only show that he had a reasonable, good-faith belief that he was disabled. Id. ; see Krouse v. Am. Sterilizer Co. , 126 F.3d 494, 502 (3d Cir. 1997) (“By its own terms, the ADA retaliation provision protects ‘any individual’ who has opposed any act or practi ce made unlawful by the ADA . . . .” (quoting 42 U.S.C. § 12203(a))). Because Foster attempts to prove his retaliation claim us ing circumstantial evidence, “[t]he an alytical framework pronounced in McDonnell Douglas Corp. v.16 Green , [411 U.S. 792, 802–04 (1 973)], guides our review.” Anderson v. Coors Brewing Co. , 181 F.3d 1171, 1178 (10th Cir. 1999); see Proctor , 502 F.3d at 1207–08 (“When, as in the case before us, th e plaintiff does not offer direct evidence of retaliation, we analyze a retaliation claim under the burden-shifting framework delineated in [ McDonnell Douglas ].”). Under this framework, once the plaintiff establishes a prima facie case of retaliati on, “the employer has the burden of showing it had a legitimate, nondiscriminatory reas on for the adverse action. If the employer can do so, the burden [of production] shifts back to the plaintiff to prove pretext, which requires a showing that the proffere d nondiscriminatory reason is unworthy of belief.” EEOC v. Picture People, Inc. , 684 F.3d 981, 988 (10th Cir. 2012) (citations and quotation marks omitted). To establish a prima facie case of ADA re taliation, a plaintif f must prove that (1) he “engaged in a protected activity”; (2) he was “subjected to [an] adverse employment action subsequent to or contemporaneous with the protected activity”; and (3) there was “a causal connection between the protected activity and the adverse employment action.” Anderson , 181 F.3d at 1178. Unqu estionably, Foster was subjected to an adverse employment ac tion—Mountain Coal terminated his employment. But Mountain Coal disputes that Foster enga ged in a protected activity and that any purported protect ed activity was causally linke d to his termination. In the district court, and now on appeal, Foster claims as protected activities his two requests for accommodation made on April 3 a nd April 11. We note that Foster may prevail on an ADA retaliation claim based on his April 3 pr otected activity, his April17 11 protected activity, or a combination of both . This is why we re fer to Foster’s ADA retaliation “claims.” But because Foster contends (and Mount ain Coal does not dispute) that he experienced only one adverse employment action—termination of his employment—Foster technically maintains only one, broad ADA retaliation claim. But Mountain Coal argues that Foster ca nnot establish a prim a facie case of ADA retaliation based on any combination of pu tative protected activity. Even if Foster somehow established a prima facie case of ADA retaliati on, Mountain Coal argues that it still would be en titled to summary judgment because it has provided a legitimate, nondiscriminatory reason for Foster’s termina tion and because Foster has not made the necessary showing of pretext. After viewing the evidence in the light mo st favorable to Foster, we conclude that genuine issues of material fact exist regarding both Foster’s April 3 and April 11 retaliation claims. Because the two claims involve separate issues of causation, we address each claim separa tely in our analysis. A. Foster’s Prima Facie Case 1. Protected Activity Before analyzing the protected-activity prong of Foster’s prima facie case of ADA retaliation, we review wh at a plaintiff must show wh en alleging as “protected activity” the act of requesting an accommoda tion. First, a plaintiff must show an adequate request for an accommodation suffi cient to qualify as protected activity. See Jones v. U.P.S., Inc. , 502 F.3d 1176, 1194 –95 (10th Cir. 2007) (discussing the adequacy of a request for accommodation in the causation cont ext). Here, Foster18 relies on his statements to M ountain Coal at the April 3 meeting and statements from Dr. Funk’s April 11 letter that he read to his supervisor, Kunde. In response, Mountain Coal contends that Foster’s re quests were inadequate to notify it of Foster’s “alleged protected activity.” Appell ee’s Resp. Br. at 30. Second, the plaintiff must also show that he “had a reasonable, good faith belief that he was entitled to an accommodation” when he made the request. 5 Jones , 502 F.3d at 1194.

a. Adequate Requests for Accommodation Certain employee actions, such as filing an EEOC complaint, are indisputably protected activities under the ADA. See Proctor , 502 F.3d at 1208 (“Proctor clearly engaged in protected activity when he filed administrative charges with the [Office of Federal Contract Complia nce Programs], EEOC, and the Kansas Human Rights Commission alleging disability discrimi nation based on UPS’s failure to accommodate him and return him to work.” ). Similarly, this court and others recognize that a request for accommodati on can constitute protected activity supporting a retaliation claim. See Jones , 502 F.3d at 1194 (“We have treated requests for reasonable accommodation as protected activity under the ADA.”); Selenke , 248 F.3d at 1265 (concluding that evidence of requests for improvements to

5 Mountain Coal doesn’t argue that Foster lacked a reasonable, good-faith belief that he was entitled to an accommodation on either April 3 or April 11.19 the work environment because of breathi ng difficulties could s upport a finding of protected activity). 6
For an ADA retaliation clai m, a request for accommodati on is adequate if it is “sufficiently direct and specific, giving notice that [the employee] needs a special accommodation.” Calero-Cerezo v. U.S. Dep’t of Justice , 355 F.3d 6, 23 (1st Cir. 2004) (quotation marks omitted); see EEOC v. C.R. Eng., Inc. , 644 F.3d 1028, 1049 (10th Cir. 2011) (relying on Calero-Cerezo ). “Although the notice or request does not have to be in writing, be made by th e employee, or formally invoke the magic words ‘reasonable accommodation,’ it nonethele ss must make clear that the employee wants assistance for his or her disability.” C.R. Eng. , 644 F.3d at 1049 (quotation marks and emphasis omitted) (quoting Taylor v. Phoenixville Sch. Dist. , 184 F.3d 296, 313 (3d Cir. 1999)); see Zivkovic v. S. Cal. Edison Co. , 302 F.3d 1080, 1089 (9th Cir. 2002) (“An employee is not requ ired to use any part icular language when requesting an accommodation but need only in form the employer of the need for an adjustment due to a medical cond ition.” (quotation marks omitted)).

6 See also Shellenberger v. Summit Bancorp, Inc. , 318 F.3d 183, 191 (3d Cir. 2003) (noting that despite the text of the reta liation statute, “[t]he right to request an accommodation in good faith is no less a guar antee under the ADA than the right to file a complaint with the EEOC”); Soileau v. Guilford of Me., Inc. , 105 F.3d 12, 16 (1st Cir. 1997) (“It would seem anomal ous . . . to think Congress intended no retaliation protection for employees who re quest a reasonable accommodation unless they also file a formal charge. This would leave employees unprotected if an employer granted the accommoda tion and shortly thereafter terminated the employee in retaliation.”).20 Many courts have evaluated the ade quacy of requests for accommodation in cases involving ADA di scrimination claims. See, e.g. , C.R. Eng. , 644 F.3d at 1048–50; Taylor , 184 F.3d at 313–15. These cases al so instruct us in evaluating the adequacy of requests for accommodation u nderlying retaliation claims, principally because an employee must engage in prot ected activity to pros ecute a retaliation claim. And an inadequate request for an accommodation—one th at does not trigger an employer’s duty to provide a reasonabl e accommodation or participate in the “interactive process” of fi nding an appropriate accommoda tion—can never constitute protected activity. See Smith v. Midland Brake, Inc. , 180 F.3d 1154, 1171 (10th Cir. 1999) (“In general, the interactive proce ss must ordinarily begin with the employee providing notice to the employer of the employee’s disability and any resulting limitations . . . .”). i. April 3 Request We conclude that, viewing the evidence in the light most favorable to Foster, a reasonable jury could interpret Foster’s comments at the April 3 meeting as an adequate request for accommodation—on e direct and specific enough to put Mountain Coal on notice th at he was requesting an accommodation for his neck injury. Therefore, summary judgmen t on this issue is inappropriate. Foster argues that his April 3 request “adequately conveyed his desire for accommodation for his disability. Cooperation was requested in conjunction with his stated need to meet with his doctor to sc hedule surgery.” Appellant’s Opening Br. at 24. In response, Mountain Coal argues that “the district court correctly held that21 [Foster’s statements] were in sufficiently ‘direct and speci fic’ to constitute a request for accommodation . . . [because they] could not have given Mount ain Coal notice of Foster’s alleged protected activity . . . .” Appellee’ s Resp. Br. at 30 (quoting Appellant’s App. vol. 8 at 1817). We conclude that a reasonable jury could find Foster’s statements sufficient to give Mo untain Coal notice th at he needed an accommodation for a disability. Foster’s deposition testimony recounting th e April 3 meeting could be clearer. But at the summary-judgment stage—taki ng all inferences fro m the evidence in Foster’s favor—his testimony is enough. A reasonable jury could conclude that, after being suspended, Foster asked for Mounta in Coal’s cooperation with an upcoming surgery and associated recovery . Mountain Coal argues that Foster’s request failed to provide it notice that he was requesting an accommodati on, but a reasonable jury could conclude otherwise gi ven Mountain Coal’s interest in obtaining Foster’s return-to-work form for a know n neck injury. Our circuit does not require Foster to use “the magic words ‘re asonable accommodation.’” C.R. Eng. , 644 F.3d at 1049. Foster certainly didn’t use those magic word s here. But he said enough to survive summary judgment on th e adequacy issue. The cases Mountain Coal cites to support its argument that Fo ster’s request for cooperation to deal with an upcoming su rgery was inadequate are unpersuasive. Initially, Mountain Co al relies upon, and the dist rict court found persuasive, Freadman v. Metropolit an Property & Casualty Insurance Co. , 484 F.3d 91 (1st Cir. 2007). In Freadman , an employee told her direct supe rvisor that she “needed to take22 some time off because [she was] starting not to feel we ll.” 484 F.3d at 103 (alteration in original) (emphasis omitted ). The First Circuit conclude d that this request lacked the necessary specificity becau se she failed to specify “ when she would need that time off.” Id. at 104 (emphasis in original ). But Foster’s comments are distinguishable from the Freadman employee’s comments because—giving Foster the benefits of the evidence and infe rences—Foster sought cooperation (an accommodation) to get his surgery and recovery “took care of.” In this way, Foster’s request was far more specific than asking for “time off” at so me uncertain, future date. See id. Also in support of its inadequate-re quest argument, Mountain Coal cites EEOC v. Product Fabricators Inc. , 763 F.3d 963 (8th Cir. 2014). In Product Fabricators , the Eighth Circuit concluded that an em ployee had inadequately requested an accommodation by simply telling his supervis or about his painful left shoulder “and that he was going to request surgery.” Id. at 971. The employee al so testified that he “may have spoken with [a di fferent supervisor] about how much time he could take off for surgery.” Id. Affirming the district court’s grant of summary judgment for the employer, the Eighth Circuit concluded th at the employee’s testimony, “at best, demonstrates that [the employer] was aware of [the employee’s] shoulder trouble, but it does not indicate that [the employee] actua lly requested time off for his surgery as an accommodation.” Id. The Eighth Circuit also found it important that the employee had not met with his doctor to discuss surgery until eight days after his termination and was not formally assessed for surg ery until a month afte r his termination. Id.23 In contrast, Mountain Coal knew from Fo ster’s comments on April 3 (several days before terminating his employment) that he was planning for a certain, imminent surgery, which he would schedule with his doctor the next day. We think Foster’s request to attend his doctor appoint ment to schedule surg ery (the implication being that the surgery had already been authorized) and the employee’s request in Product Fabricators for time to meet with his doc tor to ask about some type of shoulder surgery (the implication being that any surgery was far from certain) markedly differ. Finally, Mountain Coal relies on an unpublished distri ct-court opinion, Schlect v. Lockheed Martin Corp. , No. 11-cv-03072-RM-BNB, 2014 WL 4819006 (D. Colo. Sept. 29, 2014) (unpublished). In Schlect , an employee alleged th at she had requested an accommodation by sending an e-mail to her employer, stating: “My concern is that I need further surgery.” Id. at *3. The district court conc luded that “a reference to a concern for a need for a futu re surgery is simply not the equivalent of having a disability and requesting an acco mmodation for that disability.” Id. at *4. Here, Foster did not communicate a “concern for a need for a future surgery.” Id. Rather, as mentioned, he communicated his need to ha ve retraining rescheduled because he had a scheduled appointment, at which he said he would be scheduling surgery. As far as Mountain Coal then knew, Foster’s ap pointment with Dr. Dwyer was a mere formality to schedule a surger y that Foster and Dr. Dwyer had already concluded was necessary. Simply put, giving Fo ster the benefit of the ev idence and inferences from it, we conclude that Foster’s comments at the April 3 meeting advised Mountain Coal24 that he needed to take care of his surgery and to recover from it. In this regard, he asked for Mountain Coal’s cooperation. We conclude that a reas onable jury interpreting Fo ster’s April 3 comments could find that Foster’s comments “infor m[ed] [Mountain Coal] of the need for an adjustment due to a medical condition.” Zivkovic , 302 F.3d at 1089; see CaleroCerezo , 355 F.3d at 23 (noting that to be adequate, requests for accommodation must be “sufficiently direct and specific, giving notice that [the empl oyee] needs a special accommodation” (quotation marks omitted)). Summary judgment on this issue is therefore inappropriate. ii. April 11 Request Mountain Coal does not contest that Fo ster made an adequate request for accommodation on April 11 duri ng his phone conversation with Kunde. This is understandable because Foster read to Kund e Dr. Funk’s letter written that day, opining that Foster would likely need surg ery and declaring Fost er disabled from his current occupation. 2. Causation Because the parties agree that Foster experienced an adverse employment action, the final element Fost er must show to support hi s prima facie case of ADA retaliation is that his engaging in protect ed activity was causally related to his termination. Our cases esta blish that the temporal pr oximity between Foster’s protected activity (requests for acco mmodation) and his termination from employment suffice to establis h this causal connection.25 a. Legal Standard Foster and Mountain Coal disagree about whether evidence of temporal proximity between a protected activity a nd an adverse employment action, standing alone, is sufficient for a plai ntiff to satisfy his burden of showing causation at the prima facie stage. Foster contends that the temporal proximity between his requests for accommodation and his late r termination “is sufficien t to establish causation.” Appellant’s Opening Br. at 35 (citing Annett v. Univ. of Kan. , 371 F.3d 1233, 1239–40 (10th Cir. 2004)). Mountain Coal responds that under the Supreme Court’s recent interpretation of Title VII’s but-f or causation requirement for retaliation claims, temporal proximity alone is insu fficient to show causation in the ADA retaliation context. Appellee’ s Resp. Br. at 39–41 (citing Univ. of Tex. Sw. Med. Ctr.
v. Nassar , 133 S. Ct. 2517, 2534 (2013)). In this case, we need not de termine the extent to which Nassar alters a plaintiff’s burden to prove causation in his prima facie case of ADA retaliation. In Ward v. Jewell , 772 F.3d 1199 (10th Cir. 2014), we discussed Nassar ’s impact on the McDonnell Douglas framework. Ward , 772 F.3d at 1203. Consistent with our precedent, we held that where a consider able length of time has elapsed between a protected activity and an adverse employmen t action, a plaintiff wishing to survive summary judgment must “present ‘add itional evidence’ tying the adverse employment actions to [the pl aintiff’s protected activity].” Id. (quoting Tex. Dep’t of Cmty. Affairs v. Burdine , 450 U.S. 248, 253–54 (1981)); see Anderson , 181 F.3d at 1179 (noting that where three months elap sed between the protected activity and the26 adverse employment action, “the plaintiff must rely on additional evidence beyond temporal proximity to es tablish causation”). Citing Nassar , we noted in Ward that “[t]he Supreme Court has likened this bur den to a showing of ‘but-for causation.’” Ward , 772 F.3d at 1203 (quoting Nassar , 133 S. Ct. at 2533). Ward leaves intact our precedent holding that an ADA retaliation plaintiff may rely solely on temporal proximity to show causation during the pr ima facie stage of the McDonnell Douglas framework where his protected activity is closely followed by an adverse employment action. See Anderson , 181 F.3d at 1179 (“ [W]e have held that a one and one-half mont h period between protected activity and adverse action may, by itself, establish causation. By cont rast, we have held that a three-month period, standing alone, is insufficient to establish causation.” (citations omitted)); Burrus v. United Tel. Co. of Kan., Inc. , 683 F.2d 339, 343 ( 10th Cir. 1982) (“The causal connection may be demonstrated by ev idence of circumstances that justify an inference of retaliatory motive, such as protected conduc t closely followed by adverse action.”). Therefore, Nassar has not altered the burden a plaintiff bears in supporting the causation element of a prima facie case of ADA retaliation. Because the purported protected activity here occurre d mere days or even hours before the adverse employment action, we conclude that Foster can show causation at the prima facie stage solely with evid ence of temporal proximity. 7

7 We acknowledge that some of our sister circuits di sagree with our opinion in Ward , where we held that a retaliation pl aintiff must show evidence of but-for causation at the prima facie stage of the McDonnell Douglas framework where substantial time has elapsed between the plaintiff’s protected activity and the27 b. April 3 Request The district court concluded that Fost er did not raise a genuine issue of material fact about whether his Apr il 3 request for accommodation caused his termination. Specifically, the district cour t concluded that Fost er’s April 3 request was not “direct and specific” enough to put Mountain Coal on notice of a needed accommodation “because Mr. Foster did not state that he had actually scheduled surgery or indicate how many days of leave he would need and when he would need to take them. As a result, Mr. Foster cannot show that Mountain Coal retaliated against him as a result of his comment.” Appellant’s App. vol. 8 at 1826 (emphasis added). We understand the district court to ha ve concluded that causation was lacking because Foster’s request for accommodation was inadequate. But we have concluded above that a reasonable jury could interpret Foster’s April 3 comments as an adequate request for accommodation. Therefore, we lik ewise conclude that a reasonable jury could find that Foster’s request for an accommodation (adequa tely conveyed and based on Foster’s reasonable, good-faith belief that he wa s entitled to an accommodation) led to Mountain Coal’s decision to terminat e his employment, especially with th e additional, strong evidence of temporal proximity between Foster’s request and his termination. Citing Clark County School District v. Breeden , 532 U.S. 268 (2001), Mountain Coal alternatively ar gues that even if temporal proximity is sufficient, it resultant adverse employment action. See, e.g. , Foster v. Univ. of Md.-E. Shore , 787 F.3d 243, 248–52 (4th Cir. 2015) (observing the circu it split and concluding that

“ Nassar does not alter the causat ion prong of a prima faci e case of retaliation”).28 proceeded along previously contemplated lin es of discipline when it terminated Foster’s employment, thus disproving Fost er’s causation eviden ce. We disagree.
In Breeden , the Supreme Court considered whether an employee could maintain a Title VII retaliation claim when the employee had filed suit after obtaining an EEOC right-to-sue letter (prot ected activity) and had been transferred to another position shortly thereaft er (adverse employment action). Id. at 272. The employee’s sole evidence of causation wa s the temporal proximity between her protected activity and the adverse employment action. Id. The employee’s supervisor, however, had mentioned contemplating the pot ential transfer befo re the supervisor ever learned of the employee’s lawsuit. Id. at 271–72. The Supreme Court concluded that “[e]mployers need not suspend prev iously planned [advers e employment actions] upon [encountering an empl oyee’s protected activity], and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.” Id. at 272. Here, by contrast, Mountain Coal did not proceed un der previously contemplated lines of discip line. It suspended Foster be fore he made his April 3 request and then fired him afterward. Mo untain Coal’s cont emplated discipline varied. Thus, Breeden is inapposite. Moreover, Breeden may well prove inapposite for another reason, too. We see a genuine issue of materi al fact about why Mountain Coal suspended Foster. Mountain Coal says th at it did so because Foster lied about having provided a return-to-work form. Di sagreeing with this, Foster says that Mountain Coal suspended him for obtaini ng a return-to-work form from Dr. Funk,29 who had never seen him for hi s neck injury. If a jury cred its Foster’s account of his suspension, that would mean that Mountai n Coal suspended Fost er for one reason (getting a form from the wrong doctor) and terminated his employment for another (lying about providing a return-to-work form). Then Breeden would not help Mountain Coal since Mountain Coal wo uld obviously not have proceeded along previously contemplated lines of disciplin e—it would have suspended Foster for one reason and terminated him for a different reason. Thus, we conclude that summary judgment is improper as to the causation prong of Foster’s April 3 retaliation claim.

c. April 11 Request If Mountain Coal had terminated Foster by the time he made his April 11 request for accommodation duri ng his telephone call with Kunde, Mountain Coal obviously would not have terminated him for the request. Indeed, Mountain Coal claims that it terminated Fo ster’s employment on April 9. Because we conclude that, viewing the evidence in the light most favor able to Foster, a reasonable jury could find that Mountain Coal terminated Foste r’s employment after his April 11 request, we conclude summary judgment is inappropriate. The district court held that Foster c ould not maintain an ADA retaliation claim against Mountain Coal based on his Apr il 11 request for an accommodation because the court concluded that Foster had failed to raise a genuine issue of material fact about the accuracy of the Mountain Co al managers’ testimony that they had terminated Foster on April 9. In reaching this conclusion, the district court did not30 fully consider the evidence by which a jury could disbel ieve the managers’ account of an April 9 termination. For instance, everyone agrees that Foster’s direct supervisor, Kunde, had not known about Foster’s termin ation when Foster called Kunde on April 11. 8 A reasonable jury could infer from this fact that Foster had not been fired when he spoke with Kunde on April 11. In addition, we agree with Foster th at a reasonable factfi nder could find that Mountain Coal’s termination letter, whic h it dated April 11 and made retroactive 9 to April 9, was typed after Fost er’s telephone call to Kunde. In Foster’s words, making the termination retroactive eliminated M ountain Coal’s need to accommodate Foster for his April 11 request, and this “suspi cious timing allows the inference that Mountain Coal learned of Foster’s reque st and terminated him because of it.” Appellant’s Opening Br. at 31. Foster cont ends that there was “no other reason to

8 Citing Fed. R. Civ. P. 56(c)(2), the court disregarded Fost er’s testimony that Kunde would be “the first to know” of Foster ’s termination because “[t]hat’s just the way management works.” See Appellant’s A pp. vol. 8 at 1816 (quoting Appellant’s App. vol. 2 at 422). The cour t concluded that Foster had failed to show he had personal knowledge of this ma nagement practice and had ot herwise failed to lay the proper foundation for such testimony. We do not express an opinion as to the propriety of the district cour t’s evidentiary ruling, noting instead that th e information that is unquestionably within Foster’s personal knowledge—tha t Kunde didn’t seem to know about Foster’s termination by Ap ril 11—is sufficient to give rise to an inference of causation.

9 Mountain Coal takes issue with the us e of the term “ret roactive” in this context. It argues that th e “April 11th letter did not ma ke Foster’s termination ‘retroactive’ to April 9th. Instead, it rec ited that Mountain Co al was terminating Foster ‘ effective April 9.’” Appellee’s Resp. Br. at 25–26 (emphasis in original) (quoting Appellant’s App. vol. 1 at 230). We fail to see why this distinction matters, and we certainly don’t conclude that Foster is “mischaracteriz[i ng] the evidence,” as Mountain Coal posits. Id. at 25.31 make his termination retroactive,” and th at Mountain Coal “pre sent[ed] no reason why it would keep Foster’s termin ation secret for three days.” Id. at 31–32. A jury could fairly agree. A reasonable jury could find that Kunde’s ignorance of Foster’s termination, as well as the termination lett er’s carrying an effective date of April 9, which might relieve Mountain Coal of lia bility, could give rise to a reasonable inference that Mountain Coal knew of the April 11 request before drafting and sending the April 11 letter. Therefore, summ ary judgment on this i ssue is inappropriate.
B. Legitimate, Non-Discriminatory Basis for Foster’s Termination Having concluded that summary judgment is improper with regard to Foster’s prima facie case of retali ation for both his April 3 and April 11 requests, the McDonnell Douglas framework shifts the burden of pr oduction to Mountain Coal to show that “it had a legitimate, nondi scriminatory reason for the adverse [employment] action.” Picture People , 684 F.3d at 988. Mountain Coal argues that it has carried its burden of production by showing that “Foster was terminated for lying about having provide d an earlier Mountain Coal Return-To-Work form when, in fact, he had provided no such form.” Appellee’s Resp. Br. at 45. Foster does not contest that this testimony, if true , would suffice as a legitimate, non-discriminatory basis for term ination. Instead, Foster disputes the truth of Mountain Coal’s proffere d reason for termination, argui ng that it is mere pretext. Therefore, we continue to the thir d and final stage of our analysis.32 C. Pretext The last step in the McDonnell Douglas framework shifts the burden of production back to Foster to show that Mountain Coal’s stated justification for his termination was pretextual. Picture People , 684 F.3d at 988. 1. Legal Standard “[A] plaintiff demonstrates pretext by showing either that a discriminatory reason more likely motivated the employe r or that the employer’s proffered explanation is unworthy of credence.” Zamora v. Elite Logistics, Inc. , 478 F.3d 1160, 1166 (10th Cir. 2007). “In es tablishing pretext, an empl oyee can show the employer’s proffered reason was so inconsis tent, implausible, incoherent , or contradictory that it is unworthy of belief.” Piercy v. Maketa , 480 F.3d 1192, 1200 (10th Cir. 2007) (quotation marks omitted). With regard to the pretext step of the McDonnell Douglas framework, we address both Foster’s April 3 claim and Ap ril 11 claim together, concluding that a reasonable jury could disbelieve Mountai n Coal’s proffered reason for Foster’s termination. 2. Analysis We conclude that a reasonable jury coul d find that Mountain Coal’s proffered reason for Foster’s termination is unwo rthy of belief given Mountain Coal’s inconsistent reasons for term inating Foster. Viewing the evidence in the light most favorable to Foster, we see a genuine issu e of material fact about the reason for Foster’s termination. Langrand and Miller te stified that Mountain Coal terminated33 Foster’s employment because Foster lied about providi ng White the first return-towork form. But Jensen testified that Mount ain Coal terminated Foster’s employment because Foster’s return-to-work form “didn’ t have the right date for his release and stuff on it.” Appellant’s App. vol. 3 at 51 4. Mountain Coal argues on appeal that Jensen’s contradictory testim ony is insignificant and that “[a]lthough his testimony might have been clearer, he subseque ntly clarified the reason for Foster’s termination” on both direct a nd cross examination. Appell ee’s Resp. Br. at 51. But a reasonable jury could hold Jensen to the r eason he first gave fo r terminating Foster: an incorrect date on Foster ’s return-to-work form. A reasonable jury could find this incons istency, coupled with the termination letter’s disputed effective date, sufficient to infer that Mounta in Coal’s proffered reason for terminating Foster’s employment was pretext becau se it is so inconsistent and contradictory as to be unworthy of belief. 10 Cisneros v. Wilson , 226 F.3d 1113, 1134 (10th Cir. 2000) (concluding that “[a] rational trier of fact could infer pretext from the timing and manner of Defendan ts’ action” and the “combination of

10 We see one other matter a jury might choose to rely on as evidence of pretext. At oral argument, Mountain Co al’s counsel was asked what additional information Mountain Coal learned betw een April 3 and April 9 (using Mountain Coal’s alleged termination date) that led to Foster’s termination. Counsel responded that after the managers susp ended Foster at the April 3 meeting, they called Dr. Funk’s office a second time. But nothing sugg ests that they lear ned anything beyond what they knew before the April 3 meeting. Although Foster did not argue this point on appeal or in the district court—arguing instead that Mountain Coal terminated his employment for a different reason than it su spended him—we note that a reasonable jury could infer pretext from this fact as well. See Proctor , 502 F.3d at 1205 (“In reviewing the record [on appeal], we view all evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party.”).34 circumstances”), overruled on other grounds by Bd. of Trs. of Univ. of Ala. v.
Garrett , 531 U.S. 356 (2001), as recognized in Mur phy v. Samson Res. Co. , 525 F. App’x 703, 707 (10th Cir. 2013) (unpublished). Summar y judgment on pretext is therefore inappropriate. CONCLUSION The district court erred in granti ng Mountain Coal’s motion for summary judgment with respect to Foster’s ADA re taliation claims. We conclude that a reasonable jury could find that Foster es tablished a prima facie case of retaliation with respect to both his April 3 and Ap ril 11 purported requests for accommodation. We further conclude that a reasonable jury could find that Mountain Coal’s asserted basis for terminating Foster’s employment was pretext. We therefore reverse the district court’s order granting Mountain Coal’s motion for summary judgment with respect to Foster’s ADA retaliation clai ms and remand for further proceedings.