UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ RICHARD TURNER, Plaintiff - Appellant,

v. PHILLIPS 66 COMPANY, a corporation, Defendant - Appellee. No. 19-5030 (D.C. No. 4:18-CV -00198-GKF-FHM) (N.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HOLMES , O’BRIEN , and MATHESON , Circuit Judges.

________________ _________________ Richard Turner appeals the gran t of summary judgment in favor o f Phillips 66 Company on his claims under the Americans with D isabilities Act (ADA), 42 U.S.C. §§ 12101-12213. 1 Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 2

* After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument would not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t herefore ordered submitted without oral ar gument. This order and judgme nt is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel. It may be cited, howev er, for its persuasive value c onsistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1.

1 In 2008, Congress amended the ADA by passing the ADA Amendment s Act (“ADAAA”). In this opinion, we re fer to the amended Act simply as “the ADA.”

2 The district court also rema nded to state court Mr. Turner’s c laim under the Oklahoma Standards for Workplace Drug and Alcohol Testing Act, Okla. Stat. tit. 40, §§ 551-565

. Mr. Turner does not challenge t his ruling on appeal. The rem and FILED United States Court of Appeals Tenth Circuit 

### October 16, 2019
Elisabeth A. Shumaker Clerk of Court2 I. BACKGROUND In 2017, Mr. Turner worked for Phillips 66 as a crane operator at the company’s refinery in Ponca C ity, Oklahoma. He was subject to and aware of Phillips 66’s substance abuse po licy, which allowed for random and post-accident drug testing for “Cannabinoids, C ocaine, Opiates, Phencyclidine (PCP) and Amphetamines.” Aplt. App. I at 126. The policy mandated termi nation of any employee with a positive drug te st. Phillips 66 contracted wit h Cynergy, P.A. to provide medical review officer ( MRO) services for the drug test ing. For Oklahoma employees like Mr. Turner, the policy required the MRO to conta ct an employee after a positive test and determine whet her the employee wished to di scuss the results. On April 24, 2017, Mr. Turner was selected for a random drug te st and supplied a urine sample. On Ap ril 27, after he was involved in a workplace accident, he provided another ur ine sample for drug testing. That same d ay, a Cynergy MRO informed him his April 24 sample had tested positive for amphet amines. Thereafter, Phillips 66 received a Specimen Re sult Certificate, signed by D r. Stephen Kracht, Cynergy’s Chief MRO, confirming the test results for the April 24 sample. At the time, Mr. Turner had not been pre scribed amphetamines. But, ac cording to a letter he later provided from his doc tor, he was taking over-the-count er medications, including Sudafed, for unspeci fied “medical conditions.” Id. at 106.

does not deprive us of jurisdiction. See Hyde Park Co. v. Santa Fe Council , 226 F.3d 1207, 1209 n.1 (10th Cir. 2000).3 On April 28, Phillips 66 terminated Mr. Turner’s employment bas ed on the positive drug test. He appealed u nder Phillips 66’s policy, wh ich provided appeal rights “for the limited purpose of appealing terminations invol ving the unauthorized use of a prescription drug.” A plt. App. IV at 163 (internal qu otation marks omitted). In support of his appeal, Mr. Tur ner sought another drug test. He submitted to a hair sample test at an independent l aboratory on April 28. The resu lts of that test were negative. The post-acci dent sample he provi ded on April 27 als o tested negative. On or about May 9, 2017, Phillips 66 received a second Specimen Result Certificate, which Dr. Kracht al so signed on behalf of Cynergy. It said a different laboratory had retested Mr. Tur ner’s April 24 sample, which aga in tested positive for amphetamines. A Cynergy MRO agai n contacted Mr. Turner to info rm him of the results. He told the MRO about h is prescription medications an d those of his wife and child because “they were tryi ng to figure out what was goin g on.” Id. at 165 (brackets and internal quot ation marks omitted). Phillips 66 denied Mr. Turner’s a ppeal. He filed a discriminat ion charge with the Equal Employment Opportunity Commission (EEOC), alleging di sability discrimination under the ADA. The EEOC dismissed the charge an d issued a right-to-sue letter. Mr. Turner filed a two-page compl aint in state court alleging t he drug testing was illegal and his terminati on violated the ADA. After removi ng the case to federal court, Phillips 66 moved for summ ary judgment. The parties pro ceeded as though he was making four claims:4 (1) an ADA claim that he was subjected to an impermissible medical examination and disability-rela ted inquiry under 42 U.S.C. § 12112(d)(4)(A); (2) a “traditional” ADA claim that h e was terminated because of a d isability, with his allergies constituting “a physical or mental impairmen t that substantially limits one or more [of his] major life activities ,” id. § 12102(1)(A); (3) a “regarded as” ADA claim that h e was terminated for being “reg arded as” disabled, with his a llergies constituting “an actual or perceiv ed physical or mental impairment whether or not the impairment limits or is pe rceived to limit a major lif e activity,” id. § 12102(a)(1)(C), (3)(A); and (4) a state-law claim that his drug testing violated the Oklahoma S tandards for Workplace Drug and Alcohol Testi ng Act, Okla. Stat. tit. 40, §§ 551-565. The district court granted the motion as to the three ADA claim s. It declined to exercise supplemental jurisd iction over the state-law claim and remanded that claim to state court. Mr. Turne r timely appealed the decision on the ADA claims.
II. DISCUSSION Mr. Turner contends the distric t court erred in making evident iary rulings and in granting summary judgment t o Phillips 66 on his three ADA cl aims.
A. The District Court Did Not Ab use Its Discretion in its Summary Judgment Evidentiary Rulings Mr. Turner contends the distric t court erred in overruling his objection to affidavits submitted by Phillips 66 from (1) Dr. Kracht; (2) Dr . Salvador Valldeperas, another Cynergy MRO; and (3) Dr. William Parsons, Phillips 66’s Chief Medical Officer. Mr. Turner further argue s the court erred in not givi ng preclusive effect to a decision from the Oklahoma Employm ent Security Commission (OESC ), awarding him unemployment benefits. Fina lly, he argues the court erred in sustaining Phillips5 66’s objections to a printout fro m a page on Sudafed’s website titled “How Our Products Work.” Aplt . App. III at 58-60. “At the summary judgment stage, e vidence need not be submitted in a form that would be admissible at trial ,” but “the content or substan ce of the evidence must be admissible.” Argo v. Blue Cross & Blue Shield of Kan., Inc. , 452 F.3d 1193, 1199 (10th Cir. 2006) (internal quotation marks omitted); see also Fed. R. Civ. P. 56(c)(2) (“A party may object that the mate rial cited to support or disp ute a fact cannot be presented in a form that would be admissible in evidence.”). “ We review a district court’s evidentiary rulings at th e summary judgment stage for a buse of discretion.” Argo , 452 F.3d at 1199. A court abus es its discretion when it “cle arly err[s] or venture[s] beyond the limits of permissible choice under the ci rcumstances.” Hancock v. AT&T Co. , 701 F.3d 1248, 1262 (10th Ci r. 2012) (internal quotation marks omitted).
1. Phillips 66’s Affidavits Mr. Turner contends the district court erred in considering the affidavits of Drs. Kracht, Valldeperas, and Parsons. Drs. Kracht and Valldep eras noted in their affidavits: (1) their role for Cynergy; (2) Cynergy provided MRO se rvices for Phillips 66; (3) the Specimen Result Certificates , which were attached to the af fidavits, were “generated and kept in the ordinary course of Cynergy busi ness” and “confirmed positive test results f or amphetamine” for Mr. Turne r “obtained through a definitive analytical technique, gas chromatography/m ass spectrometry (GC/MS)”; and6 (4) Mr. Turner had not provided any information indicating he had b een prescribed amphetamines . Aplt. App. I at 154, 158. They attached a memorandum from Dr. Kracht to Phillips 66 descr ibing Mr. Turner’s conversations with Cynergy’s MROs following his positive test r esults. 3
Dr. Parsons described in his affidavit: (1) his medical experience and credentials; (2) his duties as Phillips 66’ s Chief Medical Officer; (3) his experience with Phillips 66’s drug testing, including his k nowledge of Phillips 66’s drug testing po licies and procedures; (4) the materials he reviewed from Mr. Turner’s appeal, including t he test results and Mr. Turner’s stateme nt “that he believed that the t est result was inaccurate because certain medica tions he was prescribed to tak e or he obtained over the counter cause d a ‘false positive’ result for amphetamines,” Aplt. App. II at 3; and (5) his opinion, and the basis ther efor, that Mr. Turner’s positive test “was not a false positive and was not coll ected or tested improperly,” id.

a. Disclosure requirements under Fed. R. Civ. P. 26(a) Mr. Turner first challenged the a ffidavits based on disclosure requirements in Fed. R. Civ. P. 26(a). Rule 26(a) requires disclosure of: (1) “the identity of any [expert] witness it may use at trial to pre sent evidence,” Fed. R. Civ. P. 26(a)(2)(A); and (2) “the subject matter” of the expert’s tes timony and “a s ummary of the facts and opinions” for that testimony. Id. 26(a)(2)(C). “[I]f the wi tness is one retained or specially employed to provide exp ert testimony in the case or o ne whose duties as the

3 Dr. Valldeperas added in his affi davit that he participated in the first conversation with Mr. Turner.7 party’s employee regularly invol ve giving expert testimony,” th e disclosure also must include “a written report . . . pre pared and signed by the witn ess.” Id. 26(a)(2)(B). The district court found that Ph illips 66 had failed to disclos e Dr. Parsons as a witness in violation of Rule 26( a)(2)(A) and had failed to sati sfy the disclosure requirements under Rule 26(a)(2)(C ) as to Dr. Kracht and Dr. Va lldeperas. Apart from whether these doctors should be considered to be expert or fact witnesses, the court correctly observed that e xclusion of the affidavits was n ot automatic. “If a party fails to provide information or iden tify a witness as req uired by Rule 26(a) . . . , the party is not allowed to use t hat information or witness to supply evidence on a motion, . . . unless the failure was substantia lly justified or is harmless .” Fed. R. Civ. P. 37(c)(1) (emphasi s added). Whether a disclosur e violation is harmless “is entrusted to the br oad discretion of the district court.” Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co. , 170 F.3d 985, 993 (10th Cir. 1999) (internal quotation marks omitted); see also id. (setting out several factors for a court to weigh when determining if a R ule 26(a) violation is harmless ). Here, the district court determin ed that any violations were ha rmless. It found (1) Mr. Turner failed to articul ate—and “the court [was] unable to identify” on its own—“any prejudice or surprise [M r. Turner] suffered as a resul t of the affidavits,” Aplt. App. IV at 153; and (2) Mr. T urner did “not assert that P hillips 66 acted in bad faith, and the court [saw] no ev idence of bad faith or willfuln ess by Phillips 66.” Id. at 154. The court overruled Mr . Turner’s objections.8 On appeal, Mr. Turner repeats hi s arguments that Phillips 66 fa iled to comply with Rule 26(a) but fails to ac knowledge, let alone dispute, th e court’s harmlessness determination under Rule 37(c )(1). Indeed, he conspicuously om its the harmlessness component when describing the rule. See Aplt. Opening Br. at 21 (“F.R.Civ.P. 37(c)(1) provides that a failure o f disclosure results in the p arty not being allowed to use that information or witness to supply evidence on a motion or at trial.”). “Issues not raised in the openi ng brief are deemed abandoned or waived.” Coleman v. B-G Maint. Mgmt. of Colo., Inc. , 108 F.3d 1199, 1205 (10th Cir. 1997). Moreover, it is not the court’s responsibility to “manufacture” an argument for an appellant. United States v. Powell , 767 F.3d 1026, 1037 ( 10th Cir. 2014). Because Mr. Turner has failed to contes t the district court’s harmlessn ess determination, we affirm on this issue. b. Qualifications and personal knowledge Mr. Turner next contests the affi ants’ qualifications and perso nal knowledge.
He asserts: (1) Dr. Parsons worked for Phillips 66 and was not involved until a fter the testing was complete; (2) Drs. Kracht and Valldeperas did not work in the specific lab or for the company responsible f or the testing; and (3) “[t]here is no evidence as to t he[ir] qualifications . . . to t estify as to what happens in a lab generally, nor w hat happened in the lab testin g in this case.” Aplt. Opening Br. at 21-22. On the affiants’ qualifications, the district court properly fo und:9 (1) all three affiants w ere certified MROs; (2) Oklahoma law requires MROs hav e knowledge and training to inter pret and evaluate lab test results, see Okla. Stat. tit. 40, § 552(11); and (3) Phillips 66 adopted the standards of the United States Departme nt of Transportation (DOT), which re quire an MRO to receive training on, inter alia , collection procedures for urine specimens, interpretation of drug and validity tests results, and chai n of custody, reporting, and re cordkeeping requirements, see 49 C.F.R. § 40.121(c). As to the affiants’ personal kno wledge, the district court prop erly found

(1) Drs. Kracht and Valld eperas had personal knowledge based on “th eir employment with Cynergy, the com pany that provided MRO services to Phillips 66, and their respective participation in the positive drug test that forms the basis of this case ,” Aplt. App. IV at 155; and (2) Dr. Parsons had personal knowle dge because he was Phillips 66’s Chief Medical Officer, was familiar wit h the testing procedures, and had reviewed documents related to Mr. Turner’s positive drug test. Mr. Turner has not challenged the district court’s factual find ings and has cited no authority showing the court erred. We discern no abuse of d iscretion based on our review of the record. c. Daubert standard and statements of “Belief” Mr. Turner objected to Dr. Pars ons’s affidavit on the ground th at it expressed beliefs rather than expert opi nion and, therefore, was not “ Daubert admissible.” Aplt. Opening Br. at 22. If “scientific, technical, or ot her specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue ,” a qualified witness may provide expert testimony “in the form of an opinion or othe rwise,” provided: (1) “the testimony is based upon sufficient facts or data”; (2) “the testimony is the10 product of reliable principles and methods”; and (3) the witnes s “has reliably applied the principles and methods to th e facts of the case.” Fed. R. Evid. 702. Under
Daubert , a district court has an obliga tion to ensure that expert test imony “is not only relevant, but reliable.” Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579, 589 (1993). “To be reliable under Daubert , an expert’s scientific testimony must be based on scientific knowledge, w hich ‘implies a grounding in th e methods and procedures of science’ based on actual knowledge, not ‘subjecti ve belief or unsupported speculation.’” Dodge v. Cotter Corp. , 328 F.3d 1212, 1222 (10th Cir. 2003) (quoting Daubert , 509 U.S. at 590). The district court agreed with Mr . Turner that Dr. Parsons’s af fidavit contained assertions such as the one that he did “not believe”: (1) “[Mr. ] Turner’s use of over-the-counter medication woul d cause a ‘false positive’”; (2 ) “the negative hair sample taken four days later unde rmines the earlier positive re sult”; or (3) “a drug would be detectable in [Mr.] Tur ner’s urine [three] days after the April 24 random drug test.” Aplt. App. IV at 156. But the court noted these s tatements were informed by Dr. Parsons’s “thirty-four ( 34) years of experience as a phy sician and training as a certified Medical Rev iew Officer” and his review of various doc uments. The documents included the substa nce abuse policy, the drug tes t results and Specimen Result Certif icates, Mr. Turner’s l etter after his ter mination, the letter from Mr. Turner’s treating physician listing his medications, and th e results of Mr. Turner’s hair sample test. Id. The district court “conclude[d] that11 [Dr.] Parsons’[s] affidavit o ffer[ed] opinions based on actual knowledge, rather than mere belief or speculation.” Id. The court thus overruled Mr. Turner’s objection. Mr. Turner again has not challenge d any of the district court’s findings or cited any authority to show the court erred. His conclusory argument s are insuffi cient to show an abuse of discretion, a nd having reviewed the record, we discern no abuse of discretion.
2. Mr. Turner’s Evidence Mr. Turner next contends the distr ict court erred in refusing t o (1) afford the OESC decision binding effect, 4 and (2) consider the printout from Sudafed’s website. After Phillips 66 moved for summ ary judgment, Mr. Turner filed a response that included (1) the OESC decision aw arding him unemployment benefi ts; and (2) a printout from a page on Sudafed’ s website titled “How Our Produ cts Work,” Aplt. App. III at 58-60. In its reply brief, Phillips 66 objected to both items. Mr. Turner did not seek leave to file a su rreply to respond to those objec tions. On appeal, he explains that he had been planni ng to present his response at a hearing on the

4 Following his termination by Ph illips 66, Mr. Turner filed for unemployment benefits with the OESC. He init ially was denied benefits on th e ground that he “was discharged from employment for misconduct connected to the work .” Aplt. App. II at 43. Mr. Turner appealed, and an OESC hearing officer revers ed, finding: (1) Phillips 66 had the burden of p roving Mr. Turner “was disch arged for misconduct connected to the work,” Aplt. App . II at 44; (2) because Philli ps 66 did not appear at the OESC hearing, there was no “evidence regarding its drug tes ting policy, the chain of custody, or the test results,” id. ; and (3) without eviden ce showing the validity of the testing and the results, the failed drug test could not sup port a finding of misconduct. Thus, the OESC hearing officer ruled that Mr. Turn er was entitled to unemployment benefits.12 summary judgment motion that t he court had scheduled. Before t he hearing date, however, the court granted summar y judgment. In its order, the court (1) overruled in part Phillips 66’s objection to the OESC decision, agreeing to consider it but declining to be bound by it; and (2) sustained Phillip 66’s hea rsay objection to the printout from Sudafed’s webs ite. Aplt. App. IV at 160. Mr. Turner contends here that he was denied the opportunity to respond to the evidentiary objections and otherw ise contests the district cour t’s rulings regarding the OESC decision and the printout fro m Sudafed’s website. His cha llenges fail because he has not alleged, let al one demonstrated, prejudice. See Shinseki v. Sanders , 556 U.S. 396, 409-10 (2009) (reite rating that, at least “[i]n o rdinary civil appeals,” “the party that seeks to have a judgment set aside because of a n erroneous ruling carries the burden of showing that prejudice resulted” (interna l quotation marks omitted)). Although Mr. Turner asserts that the district court’s decision to enter a ruling before the scheduled hearing c onstituted “a denial of due proce ss and an abuse of discretion,” Aplt. Opening Br. at 23, he does not specify how a hearing may have altered the court’s rulings on the OESC decision or the printou t from the Sudafed website. See Ingram v. Faruque , 728 F.3d 1239, 1251 n. 6 (10th Cir. 2013). And even if Mr. Turner had persuaded the distr ict court to consider the website printout and to treat the OESC decision as “binding,” Aplt. Opening Br. at 24, he has not shown how this would have affect ed the court’s summary judgment ruling.
See Ingram , 728 F.3d at 1251 n.6.13 We thus reject Mr. Turner’s challe nges to the district court’s rulings concerning the OESC decision and the printout from the Sudafed website.

B. The District Court Properly Granted Summary Judgment on the ADA Claims Mr. Turner challenges the distri ct court’s grant of summary jud gment to Phillips 66 on his three ADA claims. This court “review[s] summary j udgment decisions de novo, apply ing the same legal standard as the district court.” Talley v. Time, Inc. , 923 F.3d 878, 893 (10th Cir. 2019) (internal quota tion marks omitted). “[W]e vie w the evidence and draw reasonable inferences there from in the light most favorabl e to the nonmoving party.” Id. (internal quotation marks omit ted). Summary judgment is warra nted when “the movant shows that the re is no genuine dispute as to a ny material fact and the movant is entitled to judgmen t as a matter of law.” Fed. R . Civ. P. 56(a). “A fact is material only if it m ight affect the outcome of the suit under governing law. And a dispute ov er a material fact is genuine o nly if the evidence is such that a reasonable jury coul d return a verdict for the nonm oving party.” Bennett v. Windstream Commc’ns, Inc. , 792 F.3d 1261, 1265-66 ( 10th Cir. 2015) (citations and quotations omitted). If the movant “demonstrate[es] the ab sence of a genuine issue of material fact,” the non movant must then “set forth spe cific facts from which a rational trier of fact coul d find for the nonmovant.” Talley , 923 F.3d at 893 (internal quotation ma rks omitted). The non movant cannot rely on unsupported conclusory allegations. See Salehpoor v. Shahinpoor , 358 F.3d 782, 789 (10th Cir. 2004).14 1. Medical Examination and Disability-Related Inquiry Mr. Turner contends his drug test and following discussion wit h the MRO about his prescription medicati ons violated the ADA. We disagr ee. Under the ADA, an employer “shall not require a medical examina tion and shall not make inquiries of an emp loyee as to whether such empl oyee is an individual with a disability or as to the na ture or severity of the disabi lity, unless such examination or inquiry is shown to be job-related and consisten t with business necessity.” 42 U.S.C. § 12112(d )(4)(A). A plaintiff asserting such a claim need not establish a disability. See Williams v. FedEx Corp. Servs. , 849 F.3d 889, 901 (10th Cir. 2017). But “a test to determine the illegal use of drugs shall not be considered a medical examinati on.” 42 U.S.C. § 12114(d)(1); accord 29 C.F.R. § 1630.16(c)(1). Mr. Turner presents two arguments. First, Mr. Turner asserts that , because his test was positive f or amphetamines and he was taking an over-the-cou nter “amphetamine-related medi cation” recommended by his doctor, his d rug test “was not for illegal u se of drugs as permitted by 42 U.S.C. § 12114, but went beyond that to legal a nd appropriate use.” Aplt. Opening Br. at 18; see also id. at 17 (asserting that § 12114 “applies only to testing for illegal use of drugs ,” that Phillips 66 tested for “controlled substances,” that “‘controlled’ does not mean ‘ illegal,’” and that he “produ ced evidence that he made no illegal use of drugs”). He further contends the drug t est was a medical examination that required Phillip s 66 to demonstrate it was “jo b-related and consistent with business necessi ty.” 42 U.S.C. § 12112(d)(4)(A ). And, he asserts,15 because Phillips 66 made no such s howing, the drug test was an illegal medical examination. The district court found Mr. Tur ner “cite[d] no authority for t he proposition that a test for illegal drugs b ecomes a prohibited ‘medical exa mination’ solely by virtue of a false positive.” A plt. App. IV at 169. Mr. Turner has cited no such authority on appeal and, like th e district court, we have found none. Indeed, as the district court correctly observe d, the EEOC has indicated a dru g test does not become a medical examination simply b ecause “the results reveal inform ation about an individual’s medical condition be yond whether the individual is currently engaging in the illegal use of drugs,” s uch as “the presence of a contro lled substance that has been lawfully prescribed for a particular medical condition, th is information is to be treated as a confidential medi cal record.” 29 C.F.R. Pt. 1630, App. 5 A test for the illegal use of drugs does not neces sarily become a medical exam ination simply because it reveals th e potential legal use of drugs. The distr ict court, therefore, correctly rejected Mr. Turner’s medical-examination claim.

5 To the extent this guidance inte rprets 42 U.S.C. § 12114(d)(1) , it is “entitled to some consideration” but not “special deference.” Smith v. Midland Brake, Inc. , 180 F.3d 1154, 1165 n. 5 (10th Cir. 1999) (en banc) (internal qu otation marks omitted). To the extent it inte rprets 29 C.F.R. § 1630.16(c)(1 ), which largely echoes 42 U.S.C. § 12114(d)(1), it may be entitled to “substantial def erence,” id. (internal quotation marks omitted ), but only if the r egulation is ambiguo us, Kisor v. Wilkie , 139 S. Ct. 2400, 2414 (2019). We need not resolve this questio n, however, because, at the very least, we may defer to the EEOC’s interpretation “t o the extent it has the power to persuade.” Id. (internal quotation marks omitted).16 Second, Mr. Turner contends tha t the MRO’s obtaining informatio n about his prescriptions constituted an imper missible disab ility-related i nquiry. Again, he has offered no authority to support his claim. Assuming without de ciding that there was an inquiry, 6 it was not disability -related. Inst ead, as Mr. Turner testifi ed during his deposition, he and the MRO “were trying to figure out what was going on” with the second positive test, at which poi nt he gave the MRO a list of his medications and the medications taken by his wife a nd son. Aplt. App. I at 62. Al though not binding, we note, as did the district court, that the EEOC has deemed such inquiries permissible. 7 The court, therefore, correctly rejected Mr. Turner’s disabilit y-related inquiry claim. We thus agree Phillips 66 was en titled to summary judgment on M r. Turner’s medical examination and disa bility-related inquiry claim.

6 As the district court correctly observed, Mr. Turner offered “ no evidence . . . that the MRO directed any questi ons to a ‘disability.’ Rather, the undisputed evidence indicates only that the MRO received information regard ing medications.” Aplt. App. IV at 171 n. 14 (emphasis added).

7 See EEOC, ADA E NFORCEMENT G UIDANCE : P REEMPLOYMENT D ISABILITY -R ELATED Q UESTIONS AND M EDICAL E XAMINATIONS , 1995 WL 1789073, at *6 (Oct. 10, 1995) (stating an employer is permitted to ask an applicant about lawful drug use if the applicant tests positive for illegal dru g use and “may validate the test results by asking about lawful drug use or possible ex planations for the positive result other than the ill egal use of drugs,” such as b y asking, “What medications have you taken that might have resulted in this pos itive test result?” or “Are you taking this medicati on under a lawful prescription? ”); EEOC, E NFORCEMENT G UIDANCE : D ISABILITY -R ELATED I NQUIRIES AND M EDICAL E XAMINATIONS OF E MPLOYEES UNDER THE A MERICANS WITH D ISABILITIES A CT (ADA), 2000 WL 33407181, at *3 (July 27, 2000) ( defining and pr oviding examples of a “disability-related inquiry” and noting “[t] he same standa rds for determining whether a question is disability -related in the pre- and post-o ffer stages apply to the employment stage”).17 2. “ Traditional” and “Re garded As” ADA Claims Mr. Turner contends the district court erred in granting summar y judgment to Phillips 66 on his “traditional” a nd “regarded as” ADA claims. These claims fail because he has not argued, let a lone demonstrated, pretext.

a. Legal background The ADA prohibits employers from discriminating “against a qual ified individual with a disability becaus e of the disability of such individual.” 42 U.S.C. § 12112(a). For his “traditiona l” claim, Mr. Turner needed to show his allergies constitute “a physical or mental i mpairment that substantially limits one or more major life activities.” Id. § 12102(1)(A). For his “rega rded as” claim, he needed to show his allergies constituted “an actual or perceived physical or mental impairment.” Id. § 12102(3)(A). Such an impairmen t need not “li mit[] or [be] perceived to limit a ma jor life activity,” id. , but neither can it be “transitory and minor,” id. § 12102(3)(B). “A plaintiff can show intentional discrimination either by dire ct evidence of discrimination or by indirect evi dence. Proof of discriminatio n by indirect evidence follows the three-part burden-sh ifting framework articulated in McDonnell Douglas [ Corp. v. Green , 411 U.S. 792, 802 (1973)].” DePaula v. Easter Seals El Mirador , 859 F.3d 957, 969 (10th Cir. 2017) (citation omitted). As expl ained below, the McDonnell-Douglas framework applies here. It first requires a plaintiff to show a prima facie case: “(1 ) that he is disabled within the meaning of the ADA; (2) that he is qualified for the job held or desired; and (3) that he was d iscriminated against18 because of his disability.” Lincoln v. BNSF Ry. Co. , 900 F.3d 1166, 1192 (10th Cir. 2018) (internal quotation marks omitted). If a plaintiff establis hes a prima facie ca se, “the burden shif ts to the employer to offer a legitimate nondiscri minatory reason for” its employm ent decision. Id. at 1193 (internal quotation marks om itted). If the defendant arti culates such a reason, the burden shifts back to the pl aintiff to show the defendant’s proffered reason is pretextual. See id. An employee can show pretext “by revealing weakness, implausibi lities, inconsistencies, incoherences, o r contradictions in the employe r’s proffered reason, such that a reasonable fact finde r could deem the employer’s re ason unworthy of credence.” Id. (internal quotation marks omitte d). “Mere conjecture” will not suffice. Dewitt v. Sw. Bell Tel. Co. , 845 F.3d 1299, 1307 (10t h Cir. 2017) (brackets and internal quotation marks omitted). b. Analysis Assuming, without deciding, that Mr. Turner could establish a prima facie case, Phillips 66 satisfied it s “exceedingly light” burden to p rovide a legitimate, nondiscriminatory reason—the fa iled drug test—for Mr. Turner’s termination. EEOC v. C.R. England, Inc. , 644 F.3d 1028, 1043 (10t h Cir. 2011) (internal quotation marks omitted). Mr. Tur ner then had the burden of sh owing pretext. He has not, however, even argued pret ext, insisting “pretext is no t even an issue” because his “evidence is direct.” Aplt. Opening Br. at 16. Bu t the fact that “Phillips 66 fired [Mr.] Turner for a posi tive drug test” is a far cry fr om direct evidence of19 discrimination based on alleged disability. See Hawkins v. Schwan’s Home Serv.,
Inc. , 778 F.3d 877, 883 n.4 (10th Ci r. 2015) (“Direct evidence is e vidence from which the trier of f act may conclude, without inference , that the employment action was undertaken because of the em ployee’s . . . disability.” (em phasis added) (brackets and internal quotation marks omitted)); see also Tabor v. Hilti, Inc. , 703 F.3d 1206, 1216 ( 10th Cir. 2013) (noti ng “[t]he classic exa mple of direct evidence of discrimination” was w hen “the Supreme Court held th at an explicit, mandatory age requirement was dir ect evidence of age discrimina tion”). Without direct evidence of discrim ination, Mr. Turner must sati sfy McDonnell-Douglas . And because he has not even ar gued pretext, he has abandoned any argument as to this prong of McDonnell-Douglas

. See Coleman , 108 F.3d at 1205. His discrimination claim therefore fails.
III. CONCLUSION We affirm the distric t court’s judgment.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge