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 Killian, with him on the briefs) Killian Davis Richter & Mayle, 

P.C., Grand Junction, Colorado, for Plaintiff-Appellant. 

Jeffrey T. Johnson (Bradford J. Williams, and Stephen G. Masciocchi, with him on the 

brief) Holland & Hart, LLP, Denver, Colorado, for 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 Court
2 

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 Disabilities 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 remand 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 his 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 return-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 Western Resources, LLC, filed for Chapter 11 

bankruptcy in the United States Bankruptcy Court for the Eastern District of 

Missouri. In response, under 11 U.S.C. § 362, we abated the appeal until the 

automatic bankruptcy stay had been lifted. On July 5, 2016, the Bankruptcy Court 

lifted the stay under § 362(d) for the limited purpose of allowing 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 Original Return-to-Work Form 

On February 10, Ed Langrand, the Manager of Human Resources at Mountain 

Coal, called Foster to a meeting with West Elk management to discuss the neck 

injury. Foster testified that sometime during the meeting, a West 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 comp accident.” Appellant’s App. vol. 2 at 

412. Although Foster was surprised by the safety manager’s outburst, the meeting 

continued. Langrand, along with other senior managers at West Elk, recommended 

that Foster see Dr. Thomas Dwyer, an orthopedic specialist, about his neck. During 

the meeting, Foster provided Langrand the return-to-work form that the emergencyroom doctor had completed. But Langrand rejected the form, directing Foster to have 

a doctor complete a Mountain Coal return-to-work form as company policy required. 

Foster agreed that he would 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 emergency-room doctor who had seen him on 
4 

February 6. This effort failed when the emergency-room doctor declined to complete 

Mountain Coal’s forms.

Faced with this, Foster told Langrand that the emergency-room doctor had 

refused to complete Mountain Coal’s form. In response, Langrand told Foster to have 

Dr. Dory Funk—Foster’s primary-care doctor—complete Mountain Coal’s form. 

Foster attempted to do so. But 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 returned” and would call Foster to report any developments. 

Appellant’s App. vol. 5 at 959. 

About a week later, someone from Dr. Funk’s office called Foster to tell him 

he could pick up the completed form. According 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 did not know. After waiting for an hour and a half, Foster 

got an envelope from his truck, put the completed form in the envelope, and left it on 

the desk of a human-resources clerk, Sandra White. Foster further testified that, while 

speaking by telephone with a Mountain Coal 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 another 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 representing Foster and 

Mountain Coal both agreed to discontinue Foster’s deposition because he had become 

incoherent after ingesting his pain medication. When Foster’s deposition resumed 

two months later, Foster testified differently about what occurred 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 account, Foster testified that he understood that White had 

not received the completed form Foster left on her desk, but apparently White never 

told him to obtain a new one. Instead, on March 17, Langrand told Foster to return a 

completed form to Mountain Coal. Foster testified that he went to Dr. Funk’s office 

the day after speaking with Langrand; obtained 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 direction, 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 treatment 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 scheduled office visit. By then, Dr. Dwyer had received 

the earlier MRI records and the results from the additional MRI, but still had not 
6 

received Dr. Nelson’s injection notes. After reviewing the MRIs, Dr. Dwyer wrote in 

his notes that he doubted that he would “ever recommend surgery to address all of the 

degenerative changes in [Foster’s] spine,” but that with more information “a more 

limited surgical intervention could potentially be appropriate” 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 Foster 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 work after his hernia-operation doctor 

provided him a Mountain Coal return-to-work 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. Foster testified that the April 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 thing,” 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 Mountain Coal before returning to work on 

March 31. 
7 

Q: What did you say? 

A: I said, “I told you over and over that I haven’t seen Dr. 

Funk, but you all keep asking 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] did 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, “You all are using any excuse 

you all can to get me out of here.” And I asked Kevin 

again, I said, “I’ve got retraining this week. And I’ve got 

surgery scheduled—going to see the doctor [Dr. Dwyer] 

and schedule surgery for Friday—on Friday. I need to get 

these took care.” He says, “You’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 referring 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 office about the first return-to-work form 

Foster claimed to have earlier placed on White’s desk. Miller 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 related 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 what 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 Foster indefinitely, pending an 

investigation into whether Foster had indeed lied about providing an earliercompleted form. Miller testified that Foster said, “You can fire me tomorrow but it 

 3

 The testimony of the Mountain Coal managers—Miller, Wilson, and 

Jensen—was consistent with an undated and unsigned memorandum that Miller 

believes Wilson wrote shortly after the April 3 meeting. Kevin Jensen, who was also 

present at the meeting, testified that the memorandum accurately recounted what 

happened.
9 

won’t be for lying,” and noted that Foster “probably” told the managers that 

Mountain Coal was “just trying to get 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 between the parties’ 

accounts of what happened at the April 3 meeting. Foster contends that Mountain 

Coal suspended him because he had obtained the March 18 return-to-work form from 

Dr. Funk, who had never personally examined Foster for his neck injury. Mountain 

Coal maintains it suspended 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 Jensen 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 and 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 cubital tunnel syndrome.” 

Appellant’s App. vol. 7 at 1574. Foster was able to return to work on July 5, 2006, 

with restrictions on his work activities. On July 18, 2006, Foster underwent surgery 

for a “left carpal tunnel release” and “neurolysis of the ulnar nerve, left elbow with 

anterior transposition” to treat his diagnosed “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 return to work on December 6, 2006, with 

certain restrictions, although it is unclear whether he was able to return to work 

before December 6. These restrictions resulted from Foster’s carpal-tunnel surgery (it 

is unclear which surgery, although the hard-to-read form seems to say “bilateral 

carpel tunnel release,” referring to both surgeries) and 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 accommodated Foster’s surgeries by moving 

him from his position as a long-wall maintenance supervisor to the position of 

maintenance planner, which was less physically demanding. 
10 

the call, Dr. Funk’s office manager told them that Foster must have picked up the 

completed form on March 18 because Dr. Funk’s office had not received the hospital 

records from Foster’s emergency-room visit until March 17. Along this same line, 

Dr. Funk testified that he would have preferred to have the hospital records before 

filling out the form. 

E. Dr. Dwyer Does Not Recommend Surgery 

On April 4, Foster attended his scheduled follow-up appointment with Dr. 

Dwyer. Foster reported that his neck condition had worsened after he had returned to 

work for three days and that “he was unable to work anymore due to significant 

increase in his pain.” Appellant’s App. vol. 8 at 1637. Despite Foster’s worsened 

condition, Dr. Dwyer was uncertain that surgery was the proper treatment if Foster 

continued working the same job. Specifically, having now obtained Dr. Nelson’s 

notes, Dr. Dwyer summarized his assessment 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 “and then have [Foster] go 

back to work activities which, obviously, significantly aggravate all of his 

symptoms.” Id. at 1644. Dr. Dwyer also wrote in his notes that he thought “it would 

probably be in [Foster’s] best interest to consider different work activities.” Id. at 

1645. Dr. Dwyer remembered discussing these conclusions and recommendations 

with Foster during the April 4 appointment. At the end of the appointment, Foster 
11 

said he would consider his treatment options 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 considered disabled from his usual 

occupation at the mine secondary to his cervical [degenerative joint disease].” Id. at 

1196. Dr. Funk did not specifically recommend surgery, since that option exceeded 

his area of expertise. Although Foster cannot remember many specific details of his 

April 9 visit with Dr. Funk, he does recall 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 appointment. 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 occupation until [his] medical issue is resolved.” 

Appellant’s App. vol. 1 at 231.

Meanwhile, according to the deposition testimony of Mountain Coal’s senior 

managers, they had decided on April 9 to terminate Foster’s employment. Although 

Langrand and Miller both testified that Mountain Coal terminated Foster’s 

employment because Foster had lied about the return-to-work form he said he had 

left on White’s desk, Jensen testified that Mountain Coal terminated his employment 

because Foster “did not present us with a correct Return-To-Work Form.” 

Appellant’s App. vol. 3 at 513. When asked to expand on his meaning, Jensen 
12 

testified that Foster “didn’t have the right date for his release and stuff on it.” Id. at 

514.

Langrand testified that, on April 9, Miller called Foster to fire him, but 

Langrand conceded that Mountain Coal had no record of any such call. Miller 

testified that he tried to call Foster on either 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 April 10, Daniel Kunde, Foster’s direct 

supervisor at West Elk, memorialized an April 11 telephone conversation he had with 

Foster in an e-mail dated April 12 in which Kunde noted that Foster said Miller had 

tried calling Foster on April 10 but that 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 saying that Foster likely would 

need surgery and should not continue doing the 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 testified that he had picked up the letter at Dr. Funk’s office 

at about 9:30 a.m. or 10:00 a.m. and called Kunde about thirty minutes later to read it 

to him. Foster relied solely 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 suspension or termination. To support his 
13 

argument that Mountain Coal had not fired him by April 11, Foster testified that 

Kunde would have been “the first to know” about his termination 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 would 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., although nothing in the record establishes 

that the fax machine’s time setting was accurate. Dr. Funk testified that the 

transcription service commonly faxed unsigned 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 signed 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 that he did not remember receiving the April 

11 letter via fax from the transcription service, 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 his employment with 

Mountain Coal. The letter, dated April 11, terminated Foster’s employment “effective 

April 9” because Foster “gave false information as to a credible Return To Work 

Slip.” Appellant’s App. vol. 1 at 230. We cannot know what date the letter was 
14 

actually mailed (whether on April 11 or afterward) since the postmarked envelope is 

not in the record. Nor has Mountain Coal offered any testimony about when the letter 

was signed and deposited in the mail.

PROCEDURAL HISTORY 

After Mountain Coal terminated his employment, Foster filed a charge of 

discrimination with the Equal Employment Opportunity Commission (EEOC) and the 

Colorado Civil Rights Division. Ultimately, the EEOC issued Foster a right-to-sue 

notice, and on December 26, 2012, Foster filed a complaint 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 court 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 light most favorable to the nonmoving party.” 

Id. “Summary judgment is only appropriate when there are no genuine issues of 

material fact and the moving party is entitled to judgment 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 outcome of the suit under the governing law. And 
15 

a dispute over a material fact is genuine only if the evidence is such that a reasonable 

jury could return a verdict for the nonmoving party.” Bennett v. Windstream 

Commc’ns, Inc., 792 F.3d 1261, 1265–66 (10th Cir. 2015) (citations and quotation 

marks omitted). 

The ADA’s retaliation statute provides that “[n]o person shall discriminate 

against any individual because such individual has opposed any act or practice made 

unlawful by this chapter or because such individual made a charge, testified, assisted, 

or participated in any manner in an investigation, 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 discrimination claim. To 

prosecute an ADA discrimination claim, a plaintiff 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 actual 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 practice made unlawful by the ADA . . . .” (quoting 42 U.S.C. 

§ 12203(a))). 

Because Foster attempts to prove his retaliation claim using circumstantial 

evidence, “[t]he analytical framework pronounced in McDonnell Douglas Corp. v. 
16 

Green, [411 U.S. 792, 802–04 (1973)], 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, the 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 retaliation, “the employer has the burden of showing 

it had a legitimate, nondiscriminatory reason 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 proffered 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 retaliation, a plaintiff 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. Unquestionably, Foster was 

subjected to an adverse employment action—Mountain Coal terminated his 

employment. But Mountain Coal disputes that Foster engaged in a protected activity 

and that any purported protected activity was causally linked 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 and April 11. We note that Foster may 

prevail on an ADA retaliation claim based on his April 3 protected activity, his April 
17 

11 protected activity, or a combination of both. This is why we refer to Foster’s ADA 

retaliation “claims.” But because Foster contends (and Mountain 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 cannot establish a prima facie case of ADA 

retaliation based on any combination of putative protected activity. Even if Foster 

somehow established a prima facie case of ADA retaliation, Mountain Coal argues 

that it still would be entitled to summary judgment because it has provided a 

legitimate, nondiscriminatory reason for Foster’s termination and because Foster has 

not made the necessary showing of pretext. 

After viewing the evidence in the light most 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 separately 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 what a plaintiff must show when alleging as “protected 

activity” the act of requesting an accommodation. First, a plaintiff must show an 

adequate request for an accommodation sufficient 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 context). Here, Foster 
18 

relies on his statements to Mountain 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 requests were inadequate to notify it of 

Foster’s “alleged protected activity.” Appellee’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 Compliance Programs], EEOC, and the Kansas Human Rights 

Commission alleging disability discrimination based on UPS’s failure to 

accommodate him and return him to work.”). Similarly, this court and others 

recognize that a request for accommodation 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 breathing difficulties could support a finding of 

protected activity).6

For an ADA retaliation claim, a request for accommodation 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 the employee, or formally invoke the magic 

words ‘reasonable accommodation,’ it nonetheless 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 required to use any particular language when 

requesting an accommodation but need only inform the employer of the need for an 

adjustment due to a medical condition.” (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 retaliation statute, “[t]he right to request an 

accommodation in good faith is no less a guarantee 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 anomalous . . . to think Congress intended no 

retaliation protection for employees who request a reasonable accommodation unless 

they also file a formal charge. This would leave employees unprotected if an 

employer granted the accommodation and shortly thereafter terminated the employee 

in retaliation.”). 
20 

Many courts have evaluated the adequacy of requests for accommodation in 

cases involving ADA discrimination claims. See, e.g., C.R. Eng., 644 F.3d at 

1048–50; Taylor, 184 F.3d at 313–15. These cases also instruct us in evaluating the 

adequacy of requests for accommodation underlying retaliation claims, principally 

because an employee must engage in protected activity to prosecute a retaliation 

claim. And an inadequate request for an accommodation—one that does not trigger 

an employer’s duty to provide a reasonable accommodation or participate in the 

“interactive process” of finding an appropriate accommodation—can never constitute 

protected activity. See Smith v. Midland Brake, Inc., 180 F.3d 1154, 1171 (10th Cir. 

1999) (“In general, the interactive process 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—one direct and specific enough to put 

Mountain Coal on notice that he was requesting an accommodation for his neck 

injury. Therefore, summary judgment 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 schedule surgery.” Appellant’s Opening Br. at 

24. In response, Mountain Coal argues that “the district court correctly held that 
21 

[Foster’s statements] were insufficiently ‘direct and specific’ to constitute a request 

for accommodation . . . [because they] could not have given Mountain 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 Mountain Coal notice that he needed an 

accommodation for a disability. 

Foster’s deposition testimony recounting the April 3 meeting could be clearer. 

But at the summary-judgment stage—taking all inferences from the evidence in 

Foster’s favor—his testimony is enough. A reasonable jury could conclude that, after 

being suspended, Foster asked for Mountain 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 accommodation, but a reasonable jury 

could conclude otherwise given Mountain Coal’s interest in obtaining Foster’s 

return-to-work form for a known neck injury. Our circuit does not require Foster to 

use “the magic words ‘reasonable accommodation.’” C.R. Eng., 644 F.3d at 1049. 

Foster certainly didn’t use those magic words here. But he said enough to survive 

summary judgment on the adequacy issue. 

The cases Mountain Coal cites to support its argument that Foster’s request for 

cooperation to deal with an upcoming surgery was inadequate are unpersuasive. 

Initially, Mountain Coal relies upon, and the district court found persuasive, 

Freadman v. Metropolitan Property & Casualty Insurance Co., 484 F.3d 91 (1st Cir. 

2007). In Freadman, an employee told her direct supervisor that she “needed to take 
22 

some time off because [she was] starting not to feel well.” 484 F.3d at 103 (alteration 

in original) (emphasis omitted). The First Circuit concluded that this request lacked 

the necessary specificity because 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 inferences—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 some uncertain, future 

date. See id. 

Also in support of its inadequate-request 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 employee had inadequately requested an 

accommodation by simply telling his supervisor about his painful left shoulder “and 

that he was going to request surgery.” Id. at 971. The employee also testified that he 

“may have spoken with [a different 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 that 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] actually 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 surgery until a month after his termination. Id. 
23 

In contrast, Mountain Coal knew from Foster’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 appointment to schedule surgery (the implication 

being that the surgery had already been authorized) and the employee’s request in 

Product Fabricators for time to meet with his doctor 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 district-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 that 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 concluded that “a reference to a 

concern for a need for a future surgery is simply not the equivalent of having a 

disability and requesting an accommodation 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 have 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 appointment with Dr. Dwyer was a mere 

formality to schedule a surgery that Foster and Dr. Dwyer had already concluded was 

necessary. Simply put, giving Foster the benefit of the evidence and inferences from 

it, we conclude that Foster’s comments at the April 3 meeting advised Mountain Coal 
24 

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 reasonable jury interpreting Foster’s April 3 comments 

could find that Foster’s comments “inform[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 employee] 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 Foster made an adequate request for 

accommodation on April 11 during his phone conversation with Kunde. This is 

understandable because Foster read to Kunde Dr. Funk’s letter written that day, 

opining that Foster would likely need surgery and declaring Foster disabled from his 

current occupation. 

2. Causation 

Because the parties agree that Foster experienced an adverse employment 

action, the final element Foster must show to support his prima facie case of ADA 

retaliation is that his engaging in protected activity was causally related to his 

termination. Our cases establish that the temporal proximity between Foster’s 

protected activity (requests for accommodation) and his termination from 

employment suffice to establish this causal connection. 
25 

a. Legal Standard 

Foster and Mountain Coal disagree about whether evidence of temporal 

proximity between a protected activity and an adverse employment action, standing 

alone, is sufficient for a plaintiff 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 later termination “is sufficient 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-for causation requirement for retaliation 

claims, temporal proximity alone is insufficient 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 determine 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 considerable length of time has elapsed between a 

protected activity and an adverse employment action, a plaintiff wishing to survive 

summary judgment must “present ‘additional evidence’ tying the adverse 

employment actions to [the plaintiff’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 elapsed between the protected activity and the 
26 

adverse employment action, “the plaintiff must rely on additional evidence beyond 

temporal proximity to establish causation”). Citing Nassar, we noted in Ward that 

“[t]he Supreme Court has likened this burden 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 prima 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 month period between protected activity and adverse action 

may, by itself, establish causation. By contrast, 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 evidence of circumstances that justify an 

inference of retaliatory motive, such as protected conduct 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 occurred mere days or even hours before the 

adverse employment action, we conclude that Foster can show causation at the prima 

facie stage solely with evidence of temporal proximity.7

 7

 We acknowledge that some of our sister circuits disagree with our opinion in 

Ward, where we held that a retaliation plaintiff 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 the 
27 

b. April 3 Request 

The district court concluded that Foster did not raise a genuine issue of 

material fact about whether his April 3 request for accommodation caused his 

termination. Specifically, the district court concluded that Foster’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 have 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 likewise conclude that a reasonable jury 

could find that Foster’s request for an accommodation (adequately conveyed and 

based on Foster’s reasonable, good-faith belief that he was entitled to an 

accommodation) led to Mountain Coal’s decision to terminate his employment, 

especially with the 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 argues 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 circuit split and concluding that 

“Nassar does not alter the causation prong of a prima facie case of retaliation”).
28 

proceeded along previously contemplated lines of discipline when it terminated 

Foster’s employment, thus disproving Foster’s causation evidence. 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 (protected activity) and had been transferred to 

another position shortly thereafter (adverse employment action). Id. at 272. The 

employee’s sole evidence of causation was the temporal proximity between her 

protected activity and the adverse employment action. Id. The employee’s supervisor, 

however, had mentioned contemplating the potential transfer before the supervisor 

ever learned of the employee’s lawsuit. Id. at 271–72. The Supreme Court concluded 

that “[e]mployers need not suspend previously planned [adverse employment actions] 

upon [encountering an employee’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 under previously 

contemplated lines of discipline. It suspended Foster before he made his April 3 

request and then fired him afterward. Mountain Coal’s contemplated discipline 

varied. Thus, Breeden is inapposite. Moreover, Breeden may well prove inapposite 

for another reason, too. We see a genuine issue of material fact about why Mountain 

Coal suspended Foster. Mountain Coal says that it did so because Foster lied about 

having provided a return-to-work form. Disagreeing with this, Foster says that 

Mountain Coal suspended him for obtaining a return-to-work form from Dr. Funk, 
29 

who had never seen him for his neck injury. If a jury credits Foster’s account of his 

suspension, that would mean that Mountain Coal suspended Foster 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 would obviously not have proceeded along 

previously contemplated lines of discipline—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 during his telephone call with Kunde, Mountain Coal 

obviously would not have terminated him for the request. Indeed, Mountain Coal 

claims that it terminated Foster’s employment on April 9. Because we conclude that, 

viewing the evidence in the light most favorable to Foster, a reasonable jury could 

find that Mountain Coal terminated Foster’s employment after his April 11 request, 

we conclude summary judgment is inappropriate. 

The district court held that Foster could not maintain an ADA retaliation claim 

against Mountain Coal based on his April 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 Coal managers’ testimony that they had 

terminated Foster on April 9. In reaching this conclusion, the district court did not 
30 

fully consider the evidence by which a jury could disbelieve the managers’ account 

of an April 9 termination. For instance, everyone agrees that Foster’s direct 

supervisor, Kunde, had not known about Foster’s termination 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 that a reasonable factfinder could find that 

Mountain Coal’s termination letter, which it dated April 11 and made retroactive9

 to 

April 9, was typed after Foster’s telephone call to Kunde. In Foster’s words, making 

the termination retroactive eliminated Mountain Coal’s need to accommodate Foster 

for his April 11 request, and this “suspicious timing allows the inference that 

Mountain Coal learned of Foster’s request and terminated him because of it.” 

Appellant’s Opening Br. at 31. Foster contends that there was “no other reason to 

 8

 Citing Fed. R. Civ. P. 56(c)(2), the court disregarded Foster’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 App. vol. 8 at 1816 (quoting Appellant’s 

App. vol. 2 at 422). The court concluded that Foster had failed to show he had 

personal knowledge of this management practice and had otherwise failed to lay the 

proper foundation for such testimony. We do not express an opinion as to the 

propriety of the district court’s evidentiary ruling, noting instead that the information 

that is unquestionably within Foster’s personal knowledge—that Kunde didn’t seem 

to know about Foster’s termination by April 11—is sufficient to give rise to an 

inference of causation. 

9

 Mountain Coal takes issue with the use of the term “retroactive” in this 

context. It argues that the “April 11th letter did not make Foster’s termination 

‘retroactive’ to April 9th. Instead, it recited that Mountain Coal 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[ing] the evidence,” as 

Mountain Coal posits. Id. at 25. 
31 

make his termination retroactive,” and that Mountain Coal “present[ed] no reason 

why it would keep Foster’s termination 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 letter’s carrying an effective date of April 9, which might 

relieve Mountain Coal of liability, 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, summary judgment on this issue 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 retaliation for both his April 3 and April 11 requests, the 

McDonnell Douglas framework shifts the burden of production to Mountain Coal to 

show that “it had a legitimate, nondiscriminatory 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 provided 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 termination. Instead, Foster disputes the truth 

of Mountain Coal’s proffered reason for termination, arguing that it is mere pretext. 

Therefore, we continue to the third 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 employer 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 establishing pretext, an employee can show the employer’s 

proffered reason was so inconsistent, 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 April 11 claim together, concluding that a 

reasonable jury could disbelieve Mountain Coal’s proffered reason for Foster’s 

termination.

2. Analysis 

We conclude that a reasonable jury could find that Mountain Coal’s proffered 

reason for Foster’s termination is unworthy of belief given Mountain Coal’s 

inconsistent reasons for terminating Foster. Viewing the evidence in the light most 

favorable to Foster, we see a genuine issue of material fact about the reason for 

Foster’s termination. Langrand and Miller testified that Mountain Coal terminated 
33 

Foster’s employment because Foster lied about providing White the first return-towork form. But Jensen testified that Mountain 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 514. Mountain Coal argues on appeal that 

Jensen’s contradictory testimony is insignificant and that “[a]lthough his testimony 

might have been clearer, he subsequently clarified the reason for Foster’s 

termination” on both direct and cross examination. Appellee’s Resp. Br. at 51. But a 

reasonable jury could hold Jensen to the reason he first gave for terminating Foster: 

an incorrect date on Foster’s return-to-work form. 

A reasonable jury could find this inconsistency, coupled with the termination 

letter’s disputed effective date, sufficient to infer that Mountain Coal’s proffered 

reason for terminating Foster’s employment was pretext because 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 Defendants’ 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 Coal’s counsel was asked what additional 

information Mountain Coal learned between April 3 and April 9 (using Mountain 

Coal’s alleged termination date) that led to Foster’s termination. Counsel responded 

that after the managers suspended Foster at the April 3 meeting, they called Dr. 

Funk’s office a second time. But nothing suggests that they learned 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 suspended 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 Murphy v. Samson Res. Co., 525 F. 

App’x 703, 707 (10th Cir. 2013) (unpublished). Summary judgment on pretext is 

therefore inappropriate. 

CONCLUSION 

The district court erred in granting Mountain Coal’s motion for summary 

judgment with respect to Foster’s ADA retaliation claims. We conclude that a 

reasonable jury could find that Foster established a prima facie case of retaliation 

with respect to both his April 3 and April 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 claims and remand for further proceedings.