UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ STEPHEN MANNAN, Plaintiff - Appellant,

v. THE STATE OF COLORADO, Defendant - Appellee. No. 20-1077 (D.C. No. 1:18-CV -01844-MSK-SKC) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

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

________________ _________________ Stephen Mannan sued the State of Colorado. He claimed the Colorado Department of Corrections (“CDOC”) violat ed the Vocational Rehabilitation Act of 1973 (“Rehabilitation Act”) when it terminated him from his Correctional Officer (“CO”) position after failing to provide a reasonabl e accommodation for his arthritic hip disability. The district cour t granted summary judgment for the State. Exercising jurisdiction under 28 U.S. C. § 1291, we affirm.

* This order and judgment is not binding precedent, exce pt under the doctrines of law of the case, res judicata, and collateral es toppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 18, 2020 Christopher M. Wolpert Clerk of Court2 I. BACKGROUND
A. Legal Background The Rehabilitation Act allows suit by individuals with di sabilities “who have been subjected to discrimination by the federa l government or by a program or activity receiving federal financial assistance.” McGeshick v. Principi , 357 F.3d 1146, 1149 (10th Cir. 2004) (citing 29 U.S.C. § 794a). The same standa rds that apply to claims under the Americans with Disabilities Act of 1990, as amended (“ADA”), also apply to Rehabilitation Act claims. See Woodman v. Runyon , 132 F.3d 1330, 1339 n.8 (10th Cir. 1997). A Rehabilitation Act plainti ff “must establish a prima f acie case of employment discrimination,” McGeshick , 357 F.3d at 1150, which has four elements: (1) “the plaintiff is disabled under the Act”; (2) “he would be ‘otherwise qua lified’ to participate in the program”; (3) “the program receives federal financial assistance (or is a federal agency)”; and (4) “the program has discrimi nated against the plaintiff.” Id. In this case, only the seco nd element is at issue.3 B. Factual Background Initial Employment as a Correctional Officer In 2013, Mr. Mannan began working for CDOC as a CO at the Denver Reception and Diagnostic Center (“DRDC”). 1 CDOC’s position description for a CO de scribes the position’s “basic purpose” as being responsible for “[m]aintai n[ing] safety and security of facility and work sites.” App., Vol. 1 at 114. COs “en force[] security procedures.” Id. About 30 percent of COs’ time is spent on “counts, searches , inspections, and emergencies.” Id. at 115 (allcapitalization omitted). To fulf ill this duty, they must be able to “respond[] to fights, fires, suicide attempts, hostage situations, [and] riots,” which can require “subdu[ing] offenders by applying a ppropriate Use of Fo rce techniques.” Id. 2 To accomplish these duties, CDOC has id entified “essential functions” that COs must perform. See id. at 114, 119 (all-capitalization omitte d). The position description states these essential functions entail various “physical demands,” id. at 119 (allcapitalization omitted), such as CONTROL OF OTHERS – seizing[ ,] holding[,] controlling, and/or otherwise subduing violen t[,] assaultive, or physically

1 The “DRDC . . . serves primarily to cl assify offenders en tering CDOC custody and identify any special needs.” App., Vol. 2 at 177. The facility “houses inmates of all security classifications.” Id. at 178.

2 CDOC’s job analysis for COs states that they must be “[a]b[le] to use physical force to control a situation.” See App., Vol. 1 at 93. The job analysis “summarizes the job requirements for the position.” App., Vol. 2 at 181.4 threatening persons to defend oneself or prev ent injury. Body strength and agility of all four limbs is necessary. Id. at 120. Other physical essential functions include:

 “climbing,”

 “kneeling,”

 “crouching,”

 “balancing,” and

 “exert[ing] in excess of 100 [pounds] of force.” Id. at 119 (all-capitalization omitted). 3
Onset of Medical Issues In January 2017, Mr. Mannan ex perienced “chronic hip pain.” See id. at 56. He was diagnosed with osteoarthritis and told he would need a hip replacement. Mr. Mannan was morbidly obese. His doctor advised him to lose approximately 50 pounds before surgery. Initial Leave In February 2017, Mr. Mannan took l eave under the Family and Medical Leave Act (“FMLA”). His “aim . . . was to have . . . surgery done in M arch or April,” but he did not do so. See App., Vol. 2 at 226.

3 CDOC’s job analysis also states that COs must be “[a]b[le] to climb stairs and walk on hard surfaces throughout [a] shift.” App., Vol. 1 at 93.5 Instead, in March 2017, he returned to DRDC and work ed for the next several months. His condition de teriorated during this time. To ward the end of June 2017, he again took time off work. Transitional Assignment in the Control Room

a. Start of assignment On July 6, 2017, Mr. Mannan provi ded CDOC with a “Fitness-to-Return Certification” (“FTR”)—a CDOC form that allows a health care provider to state whether an employee can return to work and if so, under what restrictions. See App., Vol. 1 at 94-95. Mr. Mannan’s FTR said he could work with the following restrictions until August 1, 2017:

 “no bending/stooping/squatting”;

 “no kneeling”;

 “no crawling”;

 “no standing for more th an 1 hour[] each day”;

 “no walking for more than 1 hour[] each day”;

 “no working/climbing on el evated equipment”;

 “no assaultive, physical contro l, and/or arrest situations”;

 “no use . . . of lower extremity”; and

 “no weight bearing on [his] r[i ght] hip . . . for longer than 1 h[our] [at] a time.” Id. at 95.6 CDOC informed Mr. Mannan that “[d]ue to the nature of [the] restrictions, and due to the needs of the facility ,” it could not pr ovide him with a placement that would “adequately meet [his] work restrictions.” Id. at 96. On July 13, 2017 , Mr. Mannan submitted a new FTR listing the following work restrictions as necessary until August 13, 2017:

 “no standing for more than . . . 1 h[our] at a time” and

 “no walking for more than . . . 30 min[utes] at a time.” Id. at 98. In response, the DRDC Warden, Ryan Long, provided Mr. Mannan with a “transitional duty assignment,” from July 17, 2017, to August 13, 2017, to the DRDC control room. See id. at 99 (all-capitalization omitted); App., Vol. 2 at 182. 4 The control room, also known as the Ma ster Control Unit (“MCU”), functions as the prison’s “command center.” See App., Vol. 2 at 222; App., Vol. 3 at 296. Postings there include both sedentary and non-sedentar y work. Sedentary tasks include answering

4 Typically, “Correctional Officers ro tate through a variety of posts.” See App., Vol. 2 at 178. This practice “ensures that th e facility is able to maintain the staffing levels required by law despite . . . chronic job vacancies,” and it satisfies the need to “accommodate employees who are ill, or who take holidays and/or annual leave.” See id. at 178-79. CDOC can, however, accommodate some me dical work restrictions by providing COs with a “temporary work assignment,” or “[t]ransitional duty.” See id. at 181-82. Transitional duty “is intended only to a ssist employees with temporary medical conditions” and “is not intende d to provide light duty pos itions to employees with physical limitations on a long-term or semi-p ermanent or permanent basis.” App., Vol. 3 at 342. It is “offered at [the warden’s] disc retion,” and may be “terminate[d] . . . at any time, based on the business ne eds of the facility.” See App., Vol. 2 at 181-82.7 phones and radios, coordina ting officers’ schedules, and di stributing equipment. Nonsedentary tasks include conducting headcounts, assisting with meal s ervice, and escorting civilians around the facility. During Mr. Mannan’s te mporary assignment to the control room, he performed on ly sedentary duties. b. End of assignment In August 2017, Mr. Mannan submitted anot her FTR, which reported that his prior restrictions—limiting standing to an hour and walking to 30 minutes—should continue for another three months, until November 13, 2 017. On August 23, CDOC notified Mr. Mannan that, considering his work restrictio ns, a placement was no longer available for him. Exhaustion of Leave After Mr. Mannan’s removal from his t ransitional assignment, he went back on leave and began receiving disability benef its. He still did not undergo surgery. While on leave, Mr. Mannan continued to submit FTRs. In November 2017, he submitted an FTR stating his pr ior restrictions should conti nue for another three months until February 2018. Warden Long again informed him th at CDOC did not have a suitable placement. In Janu ary 2018, Mr. Manna n submitted an FTR extending these restrictions until August 2018.8 On January 22, 2018, Ward en Long informed Mr. Mann an by letter that he had exhausted his leave. 5 Information Sharing M eeting and Application for ADA Accommodation Warden Long’s January 22 notification also informed Mr. Mannan of an “information sharing meeting . . . to discu ss [Mr. Mannan’s] leave and status with [CDOC].” App., Vol. 1 at 111. The meeting would in clude a representative for the warden and other human res ource personnel, including ADA coordinator Jennifer Murphy. Warden Long also provided Mr. Mannan wi th the form CD OC uses for employees to request an ADA accommodation. On January 29, 2018, Mr. Mannan attende d the meeting. On January 31, he submitted his ADA accommodation request, which noted that he had had a “bad hip” beginning in January 2017 and was “unable to stand or walk for extended periods of time.” Id. at 136. As an accommoda tion, he requested a “mo re sedentary position that does not require extensive walking or standing.” Id. On February 1, 2018, Ms. Murphy sent a response to Mr. Mannan. She requested additional information from hi m and his health care provider. The provider’s response stated that Mr. Mannan’s wo rk restrictions included:

 “no balancing, climbing, stoo ping, kneeling, or crawling”;

5 The letter stated Mr. Mannan’s FMLA l eave ended in October 2017. His annual leave, sick leave, and short-term disa bility benefits ended in January 2018.9  “no heavy lifting or moving 20 pounds on a constant basis”;

 “no walking more than 30 mi nutes or standing more than an hour”;

 “no working in situations in volving assaultive behavior, physical control of anoth er person, and/or restraint situations”; and

 “no self-defense training.” Id. at 130-31. Ms. Murphy determined that, because of these restrictions, “M r. Mannan could not work as a Correctional Officer.” Id. at 131. She also coul d not find any other open positions for which Mr . Mannan was qualified. 6 On March 16, 20 18, she notified Mr. Mannan that no suitable positions were available. Termination On March 19, 2018, W arden Long notified Mr. Ma nnan that he had been “administratively separate[d] . . . from employment.” Id. at 112. C. Procedural Background Following his termination, Mr. Mannan sued the State of Colora do in federal court claiming that CDOC violated Section 504 of the Rehabilitati on Act by failing to provide him with a reasonabl e accommodation.

6 The open positions needed self-defense certification, which requires attending a physically demanding course . Mr. Mannan’s certification expired on September 30, 2017.10 The State moved for summary judgment, arguing that Mr. Mannan was not a “qualified individual” under the Act. The dist rict court found that “Mr. Mannan ha[d] not carried his burden of demonstr ating that he was a ‘qualified individual with a disability’ for purposes of the Rehabilitation Ac t,” and thus granted the motion. See App., Vol. 3 at 357. Mr. Mannan appeals.
II. DISCUSSION
A. Standard of Review We review de novo the district court’ s grant of summary judgment, applying the same standard as the district court. See Adamson v. Multi Cmty. Diversified Servs., Inc. , 514 F.3d 1136, 1145 (10th Cir. 2008). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We view the facts in the light most favorable to th e nonmovant—here, Mr. Mannan —and draw all reasonable inferences in his favor, see Tabor v. Hilti, Inc. , 703 F.3d 1206, 1215 (10th Cir. 2013), but “unsupported conclusory allegations do not create a genuine issue of fact,” EEOC v. C.R. England, Inc. , 644 F.3d 1028, 1037 (10t h Cir. 2011) (brackets a nd quotations omitted).
B. Additional Legal Backgrou nd - The “Otherwise Qualified” Requirement The parties contest only the second el ement of a prima facie Rehabilitation Act case—whether the plaintiff is “other wise qualified” for the position. See McGeshick , 357 F.3d at 1150. An “otherwise qualified” individual is “one who ‘with or without11 reasonable accommodation, can perform the essential functions of the employment position.’” Jarvis v. Potter , 500 F.3d 1113, 1121 (10th Ci r. 2007) (quoting 42 U.S.C. § 12111(8)). Determining whether a plaintiff satisfi es this element requires “a two-step inquiry”: First, the court determines wh ether the individual can perform the essential functions of the job. Second, if (but only if) the cour t concludes that the individual is unable to perform the essen tial functions of the job, the court determines whether any reasonable accommodation by the employer would enable her to perform those functions. Osborne v. Baxter Healthcare Corp. , 798 F.3d 1260, 1267 (10th Cir. 2015) (brackets and quotations omitted). This “determination . . . must be made as of the time of the [allegedly discriminatory] employment decision.” Frazier v. Simmons , 254 F.3d 1247, 1256 (10th Cir. 2001) (quotations omitted). C. Analysis Mr. Mannan cannot establish the “other wise qualified” prima facie element because he cannot show (1) he could perform the essentia l functions of the CO position, or that (2) a reasonable accommodation wo uld have enabled hi m to perform these essential functions.12 Essential Functions Under the first step of the “otherwise qualified individual” i nquiry, we conclude that Mr. Mannan cannot show he was able to perform the e ssential functions of his CO position.

a. Additional legal background i. Definition “Essential functions” are the “fundamental job dutie s of the employment position,” not the “marginal functions.” 29 C.F.R. § 1630.2(n)(1). A job function is essential when “the reason the position exists is to perform that function” or there is a “limited number of employees available am ong whom the performance of that job function can be distributed.” See id. § 1630.2(n)(2)(i)-(ii). “Evidence of whether a particular function is essential includes, but is not limited to,” the following: (i) The employer’s judgment as to which functions are essential; (ii) Written job descriptions prepared before advertising or interviewing applican ts for the job; (iii) The amount of time spen t on the job performing the function; [and] (iv) The consequences of no t requiring the incumbent to perform the function . . . . Id. § 1630.2(n)(3); see also Wells v. Shalala , 228 F.3d 1137, 1144 ( 10th Cir. 2000) (citing § 1630.2(n)(3) to determine whether a functio n is essential under the Rehabilitation Act).13 ii. Establishing essential functions “Courts require an employer to come forw ard with evidence c oncerning whether a job requirement is an essential function.” Hawkins v. Schwan’s Home Serv., Inc. , 778 F.3d 877, 889 (10th Cir. 2015); see also Laura Rothstein & Julia Irzyk, Disabilities and the Law § 4:11 (4th ed., Oct. 2020 update) (“Th e employer will genera lly bear the burden of demonstrating that requirements are funda mental or essential and are not marginal functions.”). To do so, “[t]he employer de scribes the job and functions required to perform that job.” Mason v. Avaya Commc’ns, Inc. , 357 F.3d 1114, 1119 (10th Cir. 2004). At that point, “our disability-discrim ination caselaw . . . counsels in favor of deference to an employer’s judgment concerning essential functions.” Hawkins , 778 F.3d at 884-85. “We will not second guess the empl oyer’s judgment when its description is job-related, uniformly en forced, and consistent with business necessity.” Mason , 357 F.3d at 1119. “Once the empl oyer has come forward with ev idence that a job function or requirement is essential, the plaintiff b ears the burden to dispute that evidence or otherwise show that the function or requirement is nonessential.” Kilcrease v. Domenico Transp. Co. , 828 F.3d 1214, 1222 (10th Cir. 2016 ). “Throughout this inquiry, the plaintiff bears the burden of showing she is ab le to perform the essential functions of her job.” Osborne , 798 F.3d at 1267 (bracket s and quotations omitted). 7

7 Although the employer bears the initial bur den of produc tion regarding essential functions, “the plaintiff at all times bears th e ultimate burden of persuading the trier of fact that he has been the victim of ille gal discrimination base d on his disability.” Hawkins , 778 F.3d at 887.14 b. Application The essential functions of the CO positio n encompass a broad range of physical tasks. Mr. Mannan could not perform these functions. i. Correctional Officer essential functions The essential functions of a CO incl ude the ability to respond to emergency situations, like riots, and to control inmate s physically. Performing these tasks requires the ability to ambulate and ex ert significant force. Factors to determine whether a function is essential—including the employ er’s judgment, job descriptions, the time dedicated to the function, and the conseq uences of failing to perform the function— support this conclusion. See 29 C.F.R. § 1630.2(n)(3). First, CDOC views these functions as essential. Warden Long described the ability to defend oneself as a “critical function” for COs. See App., Vol. 2 at 180; see also 29 C.F.R. § 1630.2(n)(3)(i). Second, CDOC describes such functions as “essential” in its “position descripti on” and job analysis. See App., Vol. 1 at 93, 114-15, 119 (capitalization altered); see also 29 C.F.R. § 1630.2(n)(3)(ii). Third, COs spend about a third of their time engaged in such tasks. See App., Vol. 1 at 114; see also 29 C.F.R. § 1630.2(n)(3)(iii). Fourth, the consequences of failing to perform these functions can be dire. The “position exists . . . to [m]aintain safety and security,” App., Vol. 1 at 114, and violence in the DRDC—both against prisoners and staff—occurs relatively frequently, see id. at 88; see also 29 C.F.R. § 1630 .2(n)(3)(iv).15 Mr. Mannan argues the essential functions of his job were not those of a CO generally, but rather those of a CO working in the co ntrol room. But Martin v. Kansas , 190 F.3d 1120 (10th Cir. 1999), 8 forecloses this argument. There, the CO, Mr. Martin, suffered from arthritis, which lim ited his physical activities. See id. at 1124-25. He was assigned to “tower duty,” see id. at 1124, where he conducted surveillance, communicated with others in the prison, checked equipment, and kept records, see id. at 1130—not physically demanding tasks. Mr. Martin argued the essential functions applicable to him were the “limited responsibilities of his tower duty post.” Id. The State “contend[ed] that the essential functions of [his] job included the broa d list of duties required of all” COs. Id. These duties included “the job requirements set fo rth in the written position description and the rotation policy,” as well as physical requirements like be ing able stand, walk, and “physically restrain persons in custody.” Id. We held “the essential functions of [a CO’s] job were those broader functions of a corrections officer position, as opposed to the limited duties of a particular post.” Id. at 1132. 9

8 Overruled on other grounds by Bd. of Trs. of the Univ. of Ala. v. Garrett , 531 U.S. 356 (2001), as recognized in Rivero v. Bd . of Regents of Univ. of N.M. , 950 F.3d 754 (10th Cir. 2020).

9 Other circuits agree. See Faulkner v. Douglas Cnty. , 906 F.3d 728, 733-34 (8th Cir. 2018); Hoskins v. Oakland Cnty. Sheriff’s Dep’t , 227 F.3d 719, 726-28 (6th Cir. 2000); Kees v. Wallenstein , 161 F.3d 1196, 1199 (9th Cir. 1998); Miller v. Ill. Dep’t of Corr. , 107 F.3d 483, 4 85 (7th Cir. 1997).16 As in Martin , the essential functions for Mr. Mann an were not the narrow duties of the control room, but rather th e broader duties of a CO. Even COs working in the control room performed the physical tasks of the pos ition, like responding to emergencies. For instance, COs “in the [DRDC’s] housing unit’s control center have been forced to defend in place, or to evacuate their posts by exiting either onto a roof or through the offender occupied common areas for eg ress.” App., Vol. 1 at 87. ii. Mr. Mannan’s ability to perform the essential functions When determining whether an individual could perform the essential functions of his job, we look to the time of the employment action at issue. See Frazier , 254 F.3d at 1256. Mr. Mannan’s claims potentially enco mpass both Warden Lo ng’s (1) removing him from transitional duty in the control room in August 2017 and (2) terminating him in March 2018. Mr. Mannan was unable to perfo rm the job’s essential functions at both times. In August 2017, Mr. Mannan’s work rest rictions while on transitional duty limited him to standing and walking for short periods of time, limitations that were incompatible with the essential functions of a CO. Inde ed, Mr. Mannan could not even perform all the functions of a control room operator—other COs in the control room had to perform his “nonsedentary” tasks. See App., Vol. 2 at 222-23. In March 2018, Mr. Mannan’s work restri ctions were even greater and therefore incompatible with the esse ntial functions of a CO.17 Reasonable Accommodation Because Mr. Mannan could not perform the essential functi ons of his job, we turn to the second step of the “otherwise qua lified individual” inquiry—whether a reasonable accommodation existed. Mr. Mannan cannot show that CDOC could have provided a reasonable accommodation that would have allowe d him to perform the essential functions of his job.

a. Additional legal background i. Definition “[T]he term ‘reasonable accommodation’ refers to those accommodations which presently, or in the n ear future, enable the em ployee to perform the e ssential functions of his job.” Aubrey v. Koppes , 975 F.3d 995, 1007 (10th Cir. 2020) (q uotations omitted); see also 29 C.F.R. § 1630.2(o)(1 )(ii) (defining reasonable accommodations as “[m]odifications or adjustments to the wo rk environment, or to the manner or circumstances under which the po sition held or desired is customarily performed, that enable an individual with a disability who is qualified to p erform the essential functions of that position”). Reasonable accommodations “may include”: job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified read ers or interpreters, and other similar accommodations for in dividuals with disabilities. 42 U.S.C. § 12111(9)(B); see also 29 C.F.R. § 1630.2(o)(2).18 ii. Establishing reasonable accommodation Courts recognize a three-step “burde n-shifting framework” for determining whether an accommoda tion is reasonable: First, the employee need only show that an accommodation seems reasonable on its face, i.e. , ordinarily or in the run of cases. A proposed accommodation is not reasonable on its face if it would not enable the employee to perform the essential function at issue. Second, if the employee presents a facially reasonable accommodation, the burden of pr oduction then shifts to the employer to present evidence of its inability to accommodate. The employer must show spec ial (typically case-specific) circumstances that demonstrate undue hardship in the particular circumstances. Third, if the employer presen ts such evidence, the employee has the burden of co ming forward with evidence concerning her individual capabilities a nd suggestions for possible accommodations to rebut the em ployer’s evidence. As with discrimination cases generally, the plaintiff at all times bears the ultimate burden of pe rsuading the trier of fact that he has been the victim of illegal discrimination based on his disability. Osborne , 798 F.3d at 1267-68 (brackets, quota tions, footnotes, and citations omitted). Here, the parties contest whether Mr. Ma nnan can satisfy the first step—showing a facially reasonable accommodation. iii. Facial reasonableness “A proposed accommodation is not reasona ble on its face if it would not enable the employee to perform the e ssential function at issue.” Id. at 1267; see also Adair v. City of Muskogee , 823 F.3d 1297, 1311 (1 0th Cir. 2016) (“We have consistently held that19 an employee’s request to be relieved from an essential function of his position is not, as a matter of law, a reasonable or even plausibl e accommodation.” (brackets, ellipsis, and quotations omitted)); Frazier , 254 F.3d at 1261 (“Although job restructuring is a possible accommodation . . . , an accommodation that e liminates the essential function of the job is not reasonable.” (brackets and quotations omitted)). “Sim ply put, an employer need not modify an essential f unction of an existing position in order to accommodate a disabled employee.” Adair , 823 F.3d at 1311 (quotations omitted). This rule is not absolute. For exampl e, although “[a]ttendance is generally an ‘essential’ function of any job,” an employ ee’s taking leave may serve as a reasonable accommodation if doing so woul d enable the employee to perform the job’s essential functions in the near future. See Cisneros v. Wilson , 226 F.3d 1113, 1129 (10th Cir. 2000). 10 For such leave to be r easonable, (1) “[t]he employee must provide the employer an estimated date when she can resume her essential duties,” and (2) “[a] leave request must assure an employer that an employee can perform the essential functions of her position in the ‘near future.’” Robert , 691 F.3d at 1218 (quoting Cisneros , 226 F.3d at 1129).

10 Overruled on other grounds by Bd. of Trs. of Univ. of Ala. v. Garrett , 531 U.S. 356 (2001), as recognized in Robert v. Bd. of Cnty. Comm’rs of Brown Cnty. , 691 F.3d 1211 (10th Cir. 2012).20 b. Application Mr. Mannan argues that CDOC could have accommodated his disability by extending his transitional duty in the control room. 11 But he cannot show this accommodation is facially reasonable. Mr. Mannan’s essential functions were those of a CO, not his tasks when temporarily assigned to the control room. 12 An assignment that would relieve him from performing his essential functions as a CO is not reasonable as a matter of law. See Adair , 823 F.3d at 1311; Osborne , 798 F.3d at 1267. Mr. Mannan argues that “[b]y placing [him] in the [control room] for a month, . . . [CDOC] showed that it could reasonably accommodate [him]” there. See Aplt. Br. at 15. Although CDOC provided Mr. Mannan a tran sitional duty assignment to the control room, that does not mean a more permanent assignment there would have been a reasonable accommodation. The transitional duty assignment may have provided a more generous accommodation than the Rehabilita tion Act requires to be “reasonable.” See

11 In his complaint, Mr. Ma nnan also referenced the reassignment to an open dispatcher job as a reasonable accommodation. But Mr. Mannan does not raise that argument in his briefs. In any event, give n Mr. Mannan’s pay grade, reassignment to this position would have b een a promotion, see App., Vol. 1 at 132, and an employer is “not require[d] . . . to promote a disabled employee as an accommodation,” White v. York Int’l Corp. , 45 F.3d 357, 362 (10th Cir. 1995).

12 Insofar as Mr. Mannan asked to be rea ssigned to a permanent job in the control room, no such position exists. COs rotate through the cont rol room. And “[i]t is not reasonable to require an employer to create a new job for the purpose of reassigning an employee to that job.” Smith v. Midland Brake, Inc. , 180 F.3d 1154, 1174 (10th Cir. 1999) (en banc).21 Holbrook v. City of Alpharetta , 112 F.3d 1522, 1528 (11th Cir. 1997) (noting that the defendant’s “previous accommodation may have exceeded that which the law requires”). Extending his assignment to the control room would have been an “accommodation that eliminates an essentia l function of a job.” See Hancock v. Wash. Hosp. Ctr. , 13 F. Supp. 3d 1, 6 (D.D.C. 2014), aff’d , 618 F. App’x 4 (D.C. Cir. 2015 ) (per curiam) (unpublished). “[E]ven if the employer voluntarily provided such an accommodatio n in the past,” it remains “unreasonable.” Id. 13 Thus, CDOC’s temporary assignment of Mr. Mannan to the control room in July 2017 did not requ ire CDOC to extend his assignment there. Mr. Mannan also suggests that such an accommodation would have been reasonable because he c ould have performed the essential functions of a CO in the near future. He relies on our case law recogniz ing that leave itself can be a reasonable accommodation. But Mr. Mannan fails to identify any authority expanding this case law to require extension of his transitional duty. 14 In any event, Mr. Mannan failed to meet the requirements to avail himself of a temporary leave accommodation. He did not pr ovide an estimated da te for his resuming the essential functions of a CO. See Robert , 691 F.3d at 1218. Rather, he repeatedly

13 The First, Third, Seventh, an d Eleventh Circuits agree. See Phelps v. Optima Health, Inc. , 251 F.3d 21, 26 (1st Cir. 2001); Walton v. Mental Health Ass’n. of Se. Pa. , 168 F.3d 661, 671 (3rd Cir. 1999); Basith v. Cook Cnty. , 241 F.3d 919, 930 (7th Cir. 2001); Holbrook , 112 F.3d at 1528.

14 Even though CDOC did not continue Mr. Mannan’s tr ansitional duty, it allowed him to take leave for several months.22 delayed having the surgery th at may have restored his ability to perform the essential functions. More than six months passed from his remova l from transitional duty in August 2017 to his termination in Marc h 2018 without unde rgoing surgery. See Hwang v. Kan. State Univ. , 753 F.3d 1159, 1163 (10th Ci r. 2014) (“[H]olding onto a nonperforming employee for six months just isn’t something the Rehabilitation Act ordinarily compels.”). Finally, Mr. Mannan argues that other office rs received transitional assignments in the control room for more th an a month, suggesting a longe r assignment for him would have been a reasonable accommodation. Bu t Mr. Mannan has not sh own that those who received these transitional assignments were similarly situated to him. See Garvey v. Sullivan , 773 F. App’x 634, 637 (2d Cir. 2019) (unpublished) (rejecting plaintiff’s argument that “his requested accommodation is consistent with Defendants’ admitted past practices” regarding “light duty a ssignments” for police officers—and thus reasonable—where the “instances involving other officers were not comparable” (quotations omitted)); 15 see also Hiatt v. Colo. Seminary , 858 F.3d 1307, 1318 (10th Cir. 2017) (holding that a similarly situated claim mu st have evidentiary support). Even if he could, his argument still fails because an employer’s willingness to provide employees with an accommodation that relieves them of performing essential functions does not

15 Although not precedential with in either the Tenth Circu it or the Second Circuit, see 2d Cir. R. 32.1.1(a), we find this reasoning persuasive and cite the case for its persuasive value, see 10th Cir. R. 32.1; 2d Cir. R. 32.1.1(b)(1); see also Fed. R. App. P. 32.1.23 make the accommodation “reasonable.” See Hancock , 13 F. Supp. 3d at 6; Garvey , 773 F. App’x at 637 (“[E]ven assuming that . . . other employees were similarly situated to [the plaintiff], prior assignment of temporary light-d uty work to other disabled employees does not constitute an admission that su ch light-duty work is a reasonable accommodation . . . .”). 16
III. CONCLUSION We affirm the district court’s judgment.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge

16 Mr. Mannan also argues the State’s motion for summary judgment should fail because CDOC “failed in its duty to par ticipate in the interactive process.” See Aplt. Br. at 35. But because Mr. Mannan has not sh own that CDOC could provide him with a reasonable accommodation, CDOC was not obligated to engage in an interactive process. See Wilkerson v. Shinseki , 606 F.3d 1256, 1266 (10th Ci r. 2010) (affirming summary judgment under the Rehabilitatio n Act for an employer “although there was not a face-toface meeting between the parties to discu ss accommodations” when “it was reasonable for the [employer] to conclude that any furt her interactive process would be futile and that no reasonable accommodation was possible”); Mason , 357 F.3d at 1124 n.4 (stating that an employer is “not required to engage in the interactive proc ess” when an employee is “not a qualified individual”); Smith , 180 F.3d at 1174 (“Even if [an employer] failed to fulfill its interactive obligations . . . , [an em ployee] will not be entitle d to recovery unless he can also show that a reasonable accommodation was possible . . . .”).