* Honorable Ronald A. White, District Judge, United S tates District Court

for the Eastern District of Oklahoma, sitting by de signation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 4 2005 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ALLAN T. CUMMINGS, an individual, Plaintiff - Appellant,

v. GALE NORTON, Secretary of the Department of Interior,

Defendant - Appellee. No. 03-4280

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH (D. Ct. No. 2:99-CV-321-PGC)
Erik Strindberg (Erika Birch with him on the briefs ), Strindberg & Scholnick, LLC, Salt Lake City, Utah, appearing for Plaintiff- Appellant. Carlie Christensen, Assistant United States Attorne y (Paul M. Warner, United States Attorney, with her on the brief), Office of the United States Attorney, Salt Lake City, Utah, appearing for Defendant-Appellee.

Before TACHA , Chief Circuit Judge, HENRY , Circuit Judge, and WHITE , * District Judge.2

TACHA , Chief Circuit Judge.

The National Park Service (“Park Service”) terminat ed Plaintiff-Appellant Allan T. Cummings’s employment as a park ranger formaking a series of misrepresentations on his employment applications. Mr. Cummings brought numerous discrimination claims in the District Court, including a failure to accommodate claim and a wrongful termination claim under the Rehabilitation Act of 1973. The District Court dismissed all clai ms on summary judgment. Mr. Cummings appeals only the wrongful termination clai m, relying primarily on our opinion in Den Hartog v. Wasatch Academy , 129 F.3d 1076 (10th Cir. 1997), to argue the District Court erred. In the District Co urt, however, Mr. Cummings only presented his “Den Hartogargument” in regard to his failure to accommodate claim—not the wrongful termination clai m. Because Mr. Cummings’s Den Hartogargument as it relates to his wrongful termination claim is advanced for the first time on appeal, we declin e to consider it. Therefore, we take jurisdiction under 28 U.S.C. § 1291 and AFFIRM

. I. BACKGROUND Beginning in 1983, Mr. Cummings served as a seasona l park ranger for numerous summers, working as a level-two law enforc ement ranger at Canyonlands National Park. Apparently, the hiring process for these seasonal positions is informal. The Park Service’s staff wo uld hire Mr. Cummings for a3

seasonal position and then Mr. Cummings would, pro forma, fill out an employment application. In 1988, Mr. Cummings applied for a position as a p ermanent law enforcement ranger at Canyonlands National Park. C hief Ranger Margaret Johnston did not hire Mr. Cummings because she beli eved he was an alcoholic. Mr. Cummings filed a grievance with the Equal Emplo yment Opportunity Commission, arguing that he was discriminated again st on the basis of a perceived disability. In 1993, an administrative l aw judge found in Mr. Cummings’s favor. The Park Service and Mr. Cummings then entered into a settlement agreement. The agreement included the following te rms: (1) the Park Service would pay Mr. Cummings $10,000; (2) the Park Servic e would hire him as a permanent ranger at Arches National Park; (3) if Mr . Cummings had a favorable background check, the Park Service would enroll him in a law enforcement course at the Federal Law Enforcement Training Center in o rder to secure a permanent law enforcement position; and (4) if he could not p ass the background check, he would be placed in an equivalent non-law enforcemen t position. In October 1993, the Office of Personnel Managementbegan its background check of Mr. Cummings for his enrollmentat the Training Center. In January 1994, while the investigation was still in progress, Mr. Cummings began4

working as a law enforcement ranger at Arches Natio nal Park. That February, Mr. Cummings failed the background check because th e Office of Personnel Management found that he had made several misrepres entations on his employment applications with the Park Service. Bec ause of the unfavorable background check, Mr. Cummings was reassigned to a ranger position without law enforcement duties. The Park Service then conducted its own review of M r. Cummings. Since 1983, Mr. Cummings had filled out fourteen employme nt applications with the Park Service. The investigation revealed that thes e applications were replete with misrepresentations and inconsistencies. For exampl e, Mr. Cummings falsely claimed at various times that he had earned a colle ge degree and received a Purple Heart. He further denied being convicted by either a court martial or civilian court. Based upon these misrepresentations, Arches National Park Superintendent, Noel Poe, moved to terminate Mr. Cu mmings’s employment for falsifying government documents. In September of 1 995, Superintendent Poe sent Mr. Cummings a “Proposed Removal Letter,” which out lined the grounds for his dismissal. In October 1995, Mr. Cummings responded to Deputy F ield Director Robert W. Reynolds. In his letter, he noted that his empl oyment as a ranger constituted part of a settlement agreement with the Park Servic e and that he suffered from5

post-traumatic stress disorder (“PTSD”) due to his military service in Vietnam. He also submitted a letter from therapist LeJean So mmerville. This letter stated that Mr. Cummings’s PTSD caused memory lapses and b lackouts that could affect his ability to fill out the applications correctly. Mr. Cummings was fired in March 1996. In August 1999, Mr. Cummings commenced this suit. He brought six distinct causes of action in his amended complaint, including failure to accommodate and wrongful termination claims under t he Rehabilitation Act of
1973. See 29 U.S.C. § 794. All of his claims were dismissed on summary judgment. Mr. Cummings timely appeals, raising onl y his wrongful termination claim.
II. STANDARD OF REVIEW We review the District Court’s grant of summary jud gment de novo and apply the same standards used by the District Court

. See Byers v. City of Albuquerque , 150 F.3d 1271, 1274 (10th Cir. 1998). Summary ju dgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, i f any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c ). We view the evidence, and draw reasonable inferences therefrom, in the light most favorable to Mr.1 Mr. Cummings asserts, apparently for the first time on appeal, that the

McDonnell Douglas burden-shifting framework does not apply in this c ase. This Court, however, has clearly held that the McDonnell Douglas burden-shifting applies to Rehabilitation Act claims. See Williams v. Widnall , 79 F.3d 1003, 1005 n.3 (10th Cir. 1996). The concurring opinion in Wells v. Colorado Department of Transportation , 325 F.3d 1205, 1221 (10th Cir. 2003) (Hartz, J., concurring), relied on by Mr. Cummings, does not alter our duty to apply binding Tenth Circuit precedent. 6 Cummings. Byers , 150 F.3d at 1274.
III. DISCUSSION Mr. Cummings lacked direct evidence of discriminati on. The District Court therefore analyzed his discrimination claims within the burden-shifting framework created by McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-04 (1973). 1
Under McDonnell Douglas , a plaintiff must first make a prima facie case of discrimination, after which the burden shifts to th e defendant to articulate a nondiscriminatory reason for its conduct. Id. at 802–03. The plaintiff then must show that the defendant’s stated reason is merely p retextual. Id. at 804. To make a prima facie case for wrongful termination under t he Rehabilitation Act, a plaintiff must establish three elements: (1) he was a disabled person under the statute, (2) he was otherwise qualified for the job regardless of the disability, and (3) he was terminated from his employment because o f the disability. Roberts v. Progressive Independence, Inc. , 183 F.3d 1215, 1221 (10th Cir. 1999). The parties agree that Mr. Cummings meets the first two elements. The issue is7

whether the Park Service fired Mr. Cummings because of his PTSD. In his brief opposing the Park Service’s summary ju dgment motion, Mr. Cummings argued that he satisfied his initial burde n on this element, although the evidence he raised in support of that argument is u nclear. In response, the Park Service argued that it had a legitimate nondiscrimi natory reason for firing Mr. Cummings: It fired him because he made misrepresen tations on his employment applications, not because of his PTSD. The Park Se rvice further argued that it did not learn of Mr. Cummings’s PTSD until after it iss ued its Proposed Removal Letter; hence, Mr. Cummings could not have been fir ed because of his PTSD because the disability was unknown to the Park Serv ice when it decided to fire him. With the burden shifted back to Mr. Cummings, he re plied that the Park Service’s proposed legitimate non-discriminatory re asons were pretextual. He argued that the firing came too quickly after the s ettlement agreement, he had always been a good employee, and inaccurate employm ent forms do not provide sufficient grounds for termination. The District C ourt rejected these arguments, holding that they did not establish a genuine issue of material fact that the Park Service discriminated against him because of his di sability. On appeal, Mr. Cummings again argues that the Park Service’s proffered grounds for termination were a mere pretext for dis crimination. He does not,2 While Den Hartog concerned the ADA rather than the Rehabilitation Ac t,

we note that the two Acts “impose identical obligat ions on employers.” Cisneros v. Wilson , 226 F.3d 1113, 1124 (10th Cir. 2000). “Because t he language of disability used in the ADA mirrors that in the Reha bilitation Act, we look to cases construing the Rehabilitation Act for guidance when faced with an ADA challenge,” Kimber v. Thiokol Corp. , 196 F.3d 1092, 1102 (10th Cir. 1999), and vice versa. 8 however, make the same arguments on appeal that he made below. Instead, he now attempts to establish pretext by relying exclus ively on Den Hartog v. Wasatch Academy , 129 F.3d 1076 (10th Cir. 1997). In Den Hartog , we held that the Americans With Disabilities Act of 1991 (“ADA”) prohibits employers from drawing a distinction between a disability and disa bility-caused conduct—except for drug and alcohol abuse—and then rely upon the d isability-caused conduct as legitimate grounds for terminating employment. 2 129 F.3d at 1086. Following Den Hartog , Mr. Cummings argues that he made misrepresentatio ns on employment applications because of his disorder, an d therefore the Park Service improperly relied on PTSD-caused conduct to fire hi m. As such, Mr. Cummings asserts that the Park Service’s proffered reason fo r firing him was merely pretextual. The Park Service contends that this Den Hartogargument is raised for the first time on appeal; therefore, we should not ente rtain it. See Singleton v. Wulff , 428 U.S. 106, 120 (1976). The Park Service admits that Mr. Cummings made his Den Hartogargument in regard to his failure to accommodate c laim. It argues,9

however, that raising an argument with respect to t he failure to accommodate claim is insufficient to preserve the argument for appeal on the wrongful termination claim. We agree. Mr. Cummings is attempting to appeal one cause of a ction using an argument advanced below for a different cause of ac tion. Advancing an argument for one cause of action, however, does not constitu te raising it for all causes of action. This conclusion follows logically from the general rule that issues not raised below are waived on appeal. In Tele-Communications, Inc. v.
Commissioner , 104 F.3d 1229 (10th Cir.1997), in discussing why an appellate court seldom considers an issue not presented to th e district court—especially when the appeal is of a summary judgment—we explain ed: This rule is particularly apt when dealing with an appeal from a grant of summary judgment, because the material facts are not in dispute and the trial judge considers only opposing legal t heories . . . . In order to preserve the integrity of the appellate st ructure, we should not be considered a ‘second-shot’ forum, a forum wh ere secondary, back-up theories may be mounted for the first time

. . . . Thus, an issue must be presented to, considered [and] decide d by the trial court before it can be raised on appeal. Id . at 1232-33 (quotations and internal citations omi tted). Because of the importance of raising an issue below , we have “consistently turned down the argument that the raising of a related theory was sufficient” to preserve an issue for appeal. Lyons v. Jefferson Bank & Trust , 994 F.2d 716, 722 (10th Cir.1993). Similar concerns arise in the pre sent situation, and therefore we10

hold that raising an argument with respect to one c laim does not preserve that argument for appeal of a different claim. This conclusion is consistent with other circuits’ treatment of the issue. For example, in Shabazz v. Aruz , 336 F.3d 154 (2d Cir. 2003), a habeas petitioner appealed several claims based on Brady v. Maryland, 373 U.S. 83, 87 (1963), which mandates disclosure of favorable and material evidence to a defendant upon request. In support of one of his Brady claims, the petitioner argued that the District Attorney’s Office failed to disclose certa in comments made by the trial court—which is prohibited under Gordon v. United States , 344 U.S. 414 (1953). Shabazz , 336 F.3d at 159–60. The Second Circuit refused to address petitioner’s Brady argument in the context of Gordon because he had only raised the Gordon issue below in a different context: While petitioner cited Gordon in his objections to [the lower court’s] report and recommendation, he did so in the contextof arguing that “the prosecution cannot avoid its duty to disclose by keeping its promises to a witness general,” citing DuBoise v. Lefevre , which he claimed was “a logical application of existing Supr eme Court precedent announced in Gordon v. United States .” Id. at 160 (internal citations omitted). That reference, according to the Second Circuit, wa s not a sufficient assertion of

a Brady claim based upon the District Attorney’s Office’s f ailure to disclose comments made by the trial court. Id. As such, it found that the issue was raised3 This approach is not unique to the Second Circuit. See, e.g., Johns

Hopkins Univ. v. CellPro, Inc ., 152 F.3d 1342, 1361–62 (Fed. Cir. 1998) (declining to address appellant’s “written descript ion argument” on appeal, even though it was asserted in the district court in the context of its 204-patent claim, because “[t]his is not the . . . written descriptio n argument that CellPro currently asserts on appeal.”); United States v. Hartzog , 983 F.2d 604, 608 (4th Cir. 1993) (declining to hear petitioner’s ex post facto argum ent because “[w]hile Hartzog did note at that hearing that the offenses charged under the different counts occurred while different versions of the Guidelines were in effect, he did so only in the context of arguing that the enhancement for a managerial role should not apply to all counts”) (citations omitted). 11 for the first time on appeal and declined to consid er it. 3 Id. Here, in his brief opposing summary judgment, Mr. C ummings presented his Den Hartogargument when making his prima facie case for the failure to accommodate claim. He contended that the Park Serv ice should have accommodated his disorder because his PTSD could no t be separated from his PTSD-caused conduct. Similarly, Mr. Cummings relie d on Den Hartogat the summary judgment hearing in regard to his failure t o accommodate claim. Our review of the record, however, reveals that Mr. Cummings never argued below that his termination was improperly ba sed on PTSD-caused conduct. This conclusion is further supported by the fact th at the District Court did not analyze the applicability of Den Hartogto the wrongful termination claim. We conclude, therefore, that Den Hartogwas only considered in connection to Mr. Cummings’s failure to accommodate claim, which is n ot raised on appeal. Finally, Mr. Cummings’s counsel stated during the s ummary judgment12

hearing that although “we listed both . . . a failu re to accommodate and terminate . . . . I don’t know if there’s really a difference , they are one in the same.” This lone statement, however, does not sufficiently rais e the Den Hartogargument in the wrongful termination context. The complaint an d all the briefing in this case treat the two claims as distinct with Den Hartogonly being addressed in relation to the failure to accommodate claim. Moreover, the record clearly establishes that the District Court and counsel for the Park Service took the Den Hartogargument as applying only to the failure to accommodate clai m. This single statement simply is not sufficient reference to the Den Hartogargument in the wrongful termination context. The applicability of Den Hartog to Mr. Cummings’ wrongful termination claim under the Rehabilitation Act was never presen ted to the District Court. The District Court had no opportunity to rule on Mr. Cu mmings’s Den Hartog argument in connection with his wrongful terminatio n claim, nor did the Park Service have the chance to present evidence or argu ment in opposition to the application of Den Hartogto the wrongful termination claim. Mr. Cummings’s contention that Den Hartog helps to raise a genuine issue of material fact on this claim, therefore, cannot be raised in this appeal.
IV. CONCLUSION Because Mr. Cummings raises his Den Hartogargument in conjunction13

with his wrongful termination claim for the first t ime on appeal, we decline to consider the issue and AFFIRM.