PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ MARK KILCREASE, Plaintiff - Appellant,

v. DOMENICO TRANSPORTATION CO., Defendant - Appellee. No. 15-1320

________________ _________________ Appeal from the United States District Court for the District of Colorado (D.C. No. 1:13-CV-03193-WYD-MJW)

________________ _________________ Darold W. Killmer (Andrew McNulty with him on the brie f), Killmer, Lane & Newman, LLP, Denver, Colorado, for Plaintiff-Appellant. Paul D. Godec, Kissinger & Fellman, P.C., Denver, Colorado, for Defendant-Appellee.

________________ _________________ Before KELLY , MATHESON , and McHUGH , Circuit Judges.

________________ _________________ McHUGH , Circuit Judge.

________________ _________________

I. INTRODUCTION Mark Kilcrease is a commercial truck driver who was temporarily unable to work due to the effects of can cer. After his cancer went in to remission, Mr. Kilcrease applied for a truck-driving position w ith Domenico Transportation Company. FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court2 Domenico rejected Mr. Kilcrease’s app lication, and he fi led suit, alleging discrimination and retaliation in violation of the Ameri cans with Disa bilities Act (ADA). The district court granted summar y judgment to Domenico on both claims, and Mr. Kilcrease appeals. We conclude the district court pr operly granted summary judgment on both claims. With respect to his di scrimination claim, we agree w ith the district court that Mr. Kilcrease failed to dem onstrate he was a qualified i ndividual within the meaning of the ADA and therefore cannot establish a pr ima facie case of discrimination. With respect to his retaliation cl aim, we conclude that Mr . Kilcrease cannot show the requisite nexus between his ADA complaints and an adverse employment action. We therefore affirm the district court’s gr ant of summary judg ment to Domenico.

II. BACKGROUND Mr. Kilcrease is a survivor of Acute Myeloid Leukemia (AML), a rare form of cancer. He obtained his Commercial Driv er License (CDL) in 1994 and drove commercially in Colorado from 1994 until 2002. By 2004 Mr. Kilcrease was in remission from AML, and in 2006 he began actively seek ing work. In October 2009, Mr. Kilcrease responded to a job posti ng by Domenico and filled out a preapplication questionnaire fo r a position as a truck driver with the company. The advertisement to which Mr. Kilcrease res ponded sought drivers with a Class A CDL, three years of verifiable m ountain driving, no moving viola tions within the past three years, and the ability to drive year round in the Colorado mountains. On his questionnaire, Mr. Kilcrease stated that he had eight years of driving experience and3 three years of mountain-driv ing experience. He listed no recent driving experience, instead explaining that he had been unemployed since June 2002 and was in remission from AML. A couple of weeks later, Mr. Kilcre ase received a call from Phil Domenico, who informed him that Domenico had rej ected his application. According to Mr. Kilcrease, Phil Domenico explained, “the insurance company that underwrites the company’s health insurance po licy would not cover [Mr. K ilcrease] because of [his] prior diagnosis of AML.” Mr. Kilcrease claimed he then “asked the Domenico representative, ‘I am not be ing considered for employmen t because I am in remission from AML?’” and Phil Domenico “responded , ‘Yes.’” Mr. Kilcrease suggested that Domenico’s refusal to hire him “might fall under the American s with Disabilities Act,” but Domenico declined to reconsider its decision. Mr. Kilcrease then filed with the Equal Employment Opportunity Commission (EEOC) a charge of ADA discriminati on and retaliation against Domenico. 1 In response to the charge, Domenico claime d that it had reject ed Mr. Kilcrease’s application not because of any preexisting medical condition, but because he lacked three years of recent driv ing experience—a requirement that Phil Domenico had explained to Mr. Kilcrease was required by Domenico’s auto-insurance underwriter. The EEOC issued Mr. Kilcreas e a notice of right to sue, and Mr. Kilcrease filed suit

1 Mr. Kilcrease also claime d in his EEOC charge that Domenico discriminated against him on the basis of age. However, his complaint in this matter includes no claim of age discrimination.4 against Domenico in November 2013. Mr. K ilcrease’s complaint a lleged one count of discrimination under the ADA and one count of retaliation. Domenico moved for summary judgme nt, arguing Mr. Kilcrease could not establish a prima facie case of ADA discrimination because he lacked three years of verifiable mountain-driving experience and therefore was not a “qualified individual” under the ADA. Specifically , Domenico referred to a company policy requiring mountain-driving experience consisting of experience driving on a 6% grade sustained for one mile or more and argued that Mr. K ilcrease’s employment history demonstrated he lacked such experien ce. Domenico also moved for summary judgment on Mr. Kilcrease’s retaliation clai m, arguing that Mr. Kilcrease could not establish a retaliation claim because Domenico made the decision not to hire him before he asserted any rights under the ADA. The district court agreed with Do menico that the undisputed facts demonstrated Mr. Kilcrease ha d less than three years of mountain-driving experience as defined by Domenico and therefore wa s not a “qualified i ndividual” under the ADA. The district court also concluded that because Mr. Kilcrease did not raise any ADA concerns until after Domenico had made the decision to not hire him, Mr. Kilcrease could not show the requisite causal connection between his protected activity and an adverse empl oyment decision. The district court accordingly granted Domenico’s motion for summary judgment on both claims. Mr. Kilcrease timely appealed.5 III. ANALYSIS Mr. Kilcrease challenges the district c ourt’s grant of summary judgment on his claims of ADA discriminati on and retaliation. “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 review the district court’s grant of su mmary judgment de novo, review[ing] the evidence in the light most favor able to the nonmoving party.” Clark v. Edmunds , 513 F.3d 1219, 1221–22 (10th Cir. 2008) (alteration in origin al) (internal quotation marks omitted). A. The District Court Properly Granted Su mmary Judgment on Mr. Kilcrease’s ADA Discrimination Claim. Mr. Kilcrease first challenges the distri ct court’s grant of summary judgment to Domenico on his claim of ADA discrimi nation. The ADA provides in relevant part that “[n]o covered entity sha ll discriminate against a qualif ied individual on the basis of disability in regard to . . . the hiring, advancement, or disc harge of employees.” 42 U.S.C § 12112(a). “To establ ish a prima facie case of di scrimination under the ADA, a plaintiff must show (1) that he is disabled within the meaning of the ADA; (2) that he is qualified, with or without reasona ble accommodation, to pe rform the essential functions of the job held or desired; and (3) that he was discriminated against because of his disability.” Davidson v. Am. Online, Inc. , 337 F.3d 1179, 1188 (10th Cir. 2003) (internal quotation marks omit ted). Here, Domenico’s mo tion for summary judgment, and the district court’s grant of that motion, focused exclusively on whether Mr.6 Kilcrease could establish the second element of his claim: that he was a “qualified individual” within the meaning of the ADA. We accordingly begin our analysis there. The ADA defines a “qualified individual” as “an individual with a disability who, with or without reasonable accommodati on, can perform the essential functions of the employment position that such i ndividual holds or desires.” 42 U.S.C. § 12111(8). “As a condition to performing th e essential functions of an employment position, however, an individual must first satisfy ‘the requisite skill, experience, education and other job -related requirements of the employment position.’” Tate v. Farmland Indus., Inc. , 268 F.3d 989, 993 (10th Cir. 2001) (quoting 29 C.F.R. § 1630.2(m)). 2 The dispute in this case centers on Domeni co’s requirement that a driver have three years of verifiable m ountain-driving experience, wh ich it defines as experience driving routes that include grades of 6% or more sustained for at least a mile (the Mountain-Driving Requirement). The district court concluded Mr . Kilcrease did not put forward evidence showing that he had three years of experience to satisfy the Mountain-Driving Requirement. Because Mr. Kilcrease lacked the requisite experience, the district cour t concluded he was not a qua lified individual under the ADA and therefore could not establish a pr ima facie claim of ADA discrimination. Mr. Kilcrease challenges the district court’s qualified-individual ruling on three bases. First, he argues it was imprope r for the district court to consider his

2 The EEOC’s regulations regarding ADA cl aims are instruc tive because “our disability-discrimination caselaw explicitl y incorporates the EEOC’s regulations.” Hawkins v. Schwan’s Home Serv., Inc. , 778 F.3d 877, 884 (10th Cir. 2015).7 qualifications at the prima facie stage, relying on this c ourt’s decision in Kenworthy v. Conoco, Inc. , 979 F.2d 1462, 1470 (10th Cir. 1992). Second, he argues the Mountain-Driving Requirement wa s not an “essential function” of the job because it was not uniformly enforced. 3 Third, Mr. Kilcrease argues th at, in any event, disputed issues of fact preclude summary judgmen t on whether he satisfied the MountainDriving Requirement. Kenworthy does not bar consider ation of whether Mr. Kilcrease is a qualified 1. individual. Mr. Kilcrease first contends the dist rict court erred by even considering whether Mr. Kilcrease sati sfied the Mountain-Drivi ng Requirement. He argues Kenworthy and its progeny foreclose considerat ion of a prospective employee’s qualifications at the prima fac ie stage of a discrimination claim. We disagree. Neither Kenworthy nor the other cases relied on by Mr. Ki lcrease relieve a plaintiff of the obligation to present “cred ible evidence that she possesses the objective qualifications necessary to perform the job at issue.” EEOC v. Horizon/CMS Healthcare Corp. , 220 F.3d 1184, 1194 (10th Cir. 2000). Thus, consideration of a plaintiff’s qualifications at the prima facie stage is no t only proper, but necessary.

3 While Mr. Kilcrease’s opening brief rais es this point only in support of his argument that Domenico’s st ated reasons for its hiring decision were pretextual, the district court understood this argument to relate also to the question of whether the Mountain-Driving Requirement is an essential function of the job, and it analyzed the claim through that lens. In light of the district court’s approach, we give Mr. Kilcrease the benefit of the doubt and consi der this argument as a component of his challenge to the district cour t’s essential-function ruling.8 ADA discrimination claims are generally subject to the McDonnell Douglas burden-shifting framework adapted fro m Title VII discrimination caselaw: Under that analysis, a plaintiff carries the burden of raising a genuine issue of material fact on each element of his prima facie case. If plaintiff establishes a prima facie cas e, the burden shifts to the defendant to offer a legitimate nondiscriminatory reas on for its employment decision. If defendant articulates a nondiscriminator y reason, the burden shifts back to plaintiff to show a genuine issue of material fact as to whether the defendant’s reason for the adverse employment action is pretextual. Davidson , 337 F.3d at 1189 (citation omitted); see also McDonnell Douglas Corp. v.
Green , 411 U.S. 792, 802–03 (1973).
In Kenworthy , we held it improper at the prima facie stage for the district court to credit an employer’s explanation for d eclining to promote an employee. There, a warehouse accounting clerk filed suit agai nst her employer after she was not promoted to a supervisory position and wa s later terminated. 979 F.2d at 1464. She contended, among other things , that her employer failed to promote her based on her sex and national origin. Id. at 1469. After a bench trial, the district court found against the plaintiff on her failure-to-promote claims, concluding she had failed to establish a prima facie ca se of discrimination. Id. In reviewing the district court’s decision, we noted the dist rict court “never found th at Ms. Kenworthy was not qualified” but instead imprope rly credited the employer’s evidence that the employee actually promoted to the supervisor positio n had qualifications that “marginally surpassed the plainti ff’s qualifications.” Id. We concluded that consideration of the employer’s reasons for an adverse action is premature at the prima facie stage, explaining that such evidence is properly considered only in addressing whether the9 employer’s reasons are legitimate or pretextual. Id. at 1470. We ultimately affirmed, however, concluding that desp ite the district court’s stat ement that the plaintiff had failed to establish a prima facie case, the district court nevertheless properly considered her claim under the McDonnell Douglas framework. Id. While Kenworthy holds that courts may not consider the employer’s claim that an employee was less qualified than the employee promoted or hired, it does not, contrary to Mr. Kilcrease’s claims, for eclose all consideration of a plaintiff’s qualifications. Indeed, Kenworthy specifically requires a pl aintiff to establish her qualifications with “credib le evidence that she was qualified for the position she sought.” Id. Consideration of whether a plaintif f has met that burden is therefore appropriate at the prima facie stage. But “[t]he relevant inquiry at the prima facie stage is not whether an employee or potential employee is able to meet a ll the objective criter ia adopted by the employer, but whether the employee has intr oduced some evidence that she possesses the objective qualifications necessary to perform the job sought.” EEOC , 220 F.3d at 1193. (emphasis omitted). Thus, to estab lish a prima facie case , the employee need only put forward credible evidence th at he meets the employer’s objective requirements necessary to perform the job. Id. at 1193. A failure to satisfy either subjective criteria, or objectiv e qualifications “that have no bearing on an applicant’s ability to perform the job sought,” cannot be used to defeat a plaintiff’s prima facie

case. Id. at 1194; Bullington v. United Air Lines, Inc. , 186 F.3d 1301, 1316 n.1110 (10th Cir. 1999), overruled on other grounds by Nat’l R.R. Passenger Corp. v. Morgan , 536 U.S. 101 (2002). Mr. Kilcrease argues that the Mountain-Driving Requirement should be deemed a subjective qualificat ion because “Domenico’s own application of the policy is shifting and inconsistent.” 4 In support of this claim, Mr. Kilcrease argues “Phil and Vic[tor] Domenico utilize conflicting st andards as to what constitutes ‘mountain driving’ experience” that differ from the 6% grade standard asserted by Domenico. Specifically, Mr. Kilcrease contends Ph il Domenico “considers drivers who have experience driving in a high wind environm ent, such as across Nebraska, as having driving experience that would satisfy Domenico’s alleged ‘mountain driving’ qualification.” But Mr. Kilcrease misreads Phil Domenico’s testimony. He testified not that experience with high-wind driv ing would satisfy the Mountain-Driving Requirement, but that the Mountain-Drivi ng Requirement was mandatory even for drivers assigned less mountaino us eastern routes, because they would encounter highwind situations that would require simila r skills to mountain driving. Thus, Phil Domenico’s testimony does not s upport Mr. Kilcrease’s claim. Mr. Kilcrease next direct s us to Victor Domenico ’s deposition testimony that he would consider the route from Denver to Laramie to be m ountain driving although

4 He also contends that whether an a pplication satisfies the Mountain-Driving Requirement is decided “on an ad hoc basi s” and “based on subjective criteria by the interviewer.” However, he provides no reco rd support for this assertion, and we therefore do not address this claim further. See Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 841 (10th Cir. 2005) (explaining that an issue is inadequately briefed, and therefore waived , if raised only through “conc lusory allegations with no citations to the record”).11 that route has a 6% grade “probably for a couple hundred yards” rather than sustained for a mile. But Victor Domeni co’s statement that he woul d consider a certain route to be mountain driving does not demonstrate that Domenico has applied a shifting or subjective standard to hiring decisions. Although Victor Domenico testified as to what he would hypothetically do, Mr. Ki lcrease has put forward no evidence that Domenico actually hired any driver who di d not satisfy the sustained 6% grade standard of the Mountain-Driving Requirem ent. Absent some evidence to show Domenico actually applied the Mountain-Driving Re quirement in a subjective fashion, we are not convinced that c onsideration of this qualification was inappropriate at the prima facie stage. In sum, we reject Mr. K ilcrease’s argument that c onsideration of his mountaindriving experience was inappropri ate at the prima facie stage. Kenworthy does not bar consideration of objective, job-related qualifications, and Mr. Kilcrease has not demonstrated Domenico applied the Mount ain-Driving Requirement in a subjective fashion. The District Court Did Not Err in Concluding the Mountain-Driving 2. Requirement was Essential. We next consider Mr. Kilcrease’s claim that the Mountain-Driving Requirement was not an “essential function” or requirement of the job. Essential functions of a job are those th at “bear more than a marginal relationship to the job at issue.” Hawkins v. Schwan’s Home Serv., Inc. , 778 F.3d 877, 887 (10th Cir. 2015) (internal quotation marks omitted). In evaluating whether a job requirement is12 essential, courts place “c onsiderable weight on an em ployer’s judgment concerning a particular job’s ‘ess ential’ functions.” Id. at 888. Because it is the employer’s role to “describe[] the job and functions required to perform that job,” we “will not second guess the employer’s judgment when its de scription is job-related, uniformly enforced, and consistent with business necessity.” Id. (internal quotation marks omitted). “Evidence of whether a part icular function is essentia l to a job includes (but is not necessarily limited to ) (1) the employer’s judgment as to which functions are essential, (2) written job de scriptions prepared before advertising or interviewing applicants for the job, (3) the consequences of not requi ring the incumbent to perform the function, and (4) the current work expe rience of incumbents in similar jobs.” Id. at 887. Once the employer has come forwar d with evidence that a job function or requirement is essential, th e plaintiff bears the burden to dispute that evidence or otherwise show that the functi on or requirement is nonessential. 5 Id. at 893. In support of its position that the Mountain-Driving Re quirement is an essential function, Domenico introduced evidence that a requi rement of three years of verifiable mountain-driving experience was contained in the advertisement to which Mr. Kilcrease responded and that, by compa ny policy, that meant experience driving routes including grades of 6% sustaine d for a mile. Domenico introduced evidence

5 Although we have recognized that “‘ qualifications’ and ‘functions’ are in some sense distinguishable terms,” our caselaw has generally analyzed job requirements—“be they listed as skills, qua lifications, or certifications”—under the “essential function” rubric. See Hawkins , 778 F.3d at 895–96 (re jecting claim that district court improperly c onflated job qualific ations and essen tial functions and collecting cases applying the “essential function” inquiry to certification and training requirements).13 that such experience was n ecessary for safety because the “vast majority” of its routes at the time involved mountain drivi ng. Finally, Victor Domenico averred that Domenico hired six drivers in Octobe r 2009—the same month Mr. Kilcrease submitted his pre-applica tion questionnaire—each of w hom had more than three years of mountain-driving ex perience. The district cour t concluded the undisputed evidence demonstrated the Mountain-Drivi ng Requirement was e ssential to the job Mr. Kilcrease sought. In challenging the district court’s ru ling, Mr. Kilcrease firsts argues the Mountain-Driving Requirement is not essential because it was an unwritten policy. But Mr. Kilcrease cites no authority for the proposition that a job requirement contained on the face of a job description cannot be essential merely because it has not been reduced to a writte n company policy. Accordingl y, we are not persuaded that Domenico’s failure to formally memorialize the Mountain-Driving Requirement in writing renders that job requirement nonessential. Next, Mr. Kilcrease argues the Mounta in-Driving Requirement is nonessential because it “was not applie d across the board to all can didates.” “The question of whether a job requirement is a necessary requisite to em ployment initially focuses on whether an employer actually requires all em ployees in the particular position to satisfy the alleged job -related requirement.” Tate , 268 F.3d at 993. Mr. Kilcrease14 contends that Domenico hired two driver s who did not satisfy the Mountain-Driving Requirement: Rubin Pe te and John Presho. 6

a. Rubin Pete Domenico hired Rubin Pete in Octobe r 2009, the same month Mr. Kilcrease submitted his pre-application questionna ire. Phil Domenico was asked in his deposition whether Mr. Pete had the requisi te mountain-driving experience when he was hired. Phil Domenico could not re member interviewing Mr. Pete, and was unsure, based on his application materials, whether certain aspe cts of Mr. Pete’s experience required mountain dr iving. However, he stated that “[s]omebody probably interviewed this guy and asked about thes e things and was satisfied with the answers.” Domenico submitted to the district court a declaration from Mr. Pete explaining that the mountain routes he drove for D.G. Coleman, Mile Hi Frozen Foods, and White Farms Trucking—for which Mr. Pete drove three months, thirteen months, and twenty-two months, respectiv ely—all required driving on a 6% grade sustained for at least a mile . Mr. Kilcrease has identified no evidence to dispute that Mr. Pete satisfied the Mountain-Driving Re quirement at the time Domenico hired him.

6 Mr. Kilcrease also assert s Victor Domenico was hired without the requisite mountain-driving experience. But the portions of the reco rd cited by Mr. Kilcrease do not support the claim that Do menico hired Victor Domeni co without three years of mountain-driving experience. To the exte nt Mr. Kilcrease sought to reassert on appeal the challenge to Phil Domenico’s driving experi ence he raised in his summary-judgment briefing, th e record discloses only that Phil Domenico was hired without recent commercial driving experience, a quali fication that is not at issue with respect to whether Mr. Kilcre ase is a qualified individual.15 b. John Presho Domenico hired Mr. Presho in January 2 009, nine months before Mr. Kilcrease submitted his pre-applicati on questionnaire. In his depo sition, Phil Domenico was unfamiliar with Mr. Presho and did not belie ve he had interviewed or hired him, explaining that the notes regarding empl oyment verification were not in his handwriting. When asked if Mr. Presho’s a pplication materials showed that he had the requisite experience, Phil Domenico agr eed that the materials presented to him in the deposition did not reflect three years of mountain-drivi ng experience. But he also explained that whether particular work e xperience involves mount ain driving is “part of what you would ask during the interview.” 7 Victor Domenico similarly averred that “the company would lear n far more about an appli cant during the interview and gain information about an applicant beyon d what was stated on his application, including additional experience.” And Phil Do menico testified that, during the period he was responsible for hiring, he adhere d to the Mountain-Driv ing Requirement and was unaware of any drivers hired by Domeni co who did not satisf y that requirement. 8

7 It is unclear precisely what documents were before Phil Dome nico at the time he made this statement, as the deposition exhibits are no t contained in the record on appeal. Although the record includes a summary-judgment exhibit entitled “Presho Application Materials,” it contains no iden tification as a deposition exhibit, and the exhibit number does not correspond to th at of the relevant deposition exhibit. 8 Domenico asserts in its appellate brie f that “[a]s a matter of undisputed fact, Presho actually had six years of mountai n driving experience when hired by Domenico.” But the record does not support th is claim. Instead, th e relevant exhibits and Victor Domenico’s affida vit establish that Mr. Presho had six years total driving experience but include nothing abou t his mountain-dri ving experience.16 In arguing that Mr. Presho did not me et the Mountain-Driving Requirement, Mr. Kilcrease cites exclusiv ely to Phil Domenico’s deposition testimony. But we do not agree with Mr. Kilcreas e’s contention that Phil Do menico’s deposition testimony establishes that Mr. Presho lacked the requi site experience. Rath er, Phil Domenico’s testimony establishes only th at he did not interview Mr. Presho and therefore did not know whether he had three years of mountai n-driving experience, and that such experience was not reflected on the materi als presented to him in his deposition. Nothing in that testimony affirmatively supports Mr. K ilcrease’s contention that Mr. Presho was unqualified, and Mr. Kilc rease has identified no other record evidence from which a factfinder could co nclude Mr. Presho lacked the requisite mountain-driving experience. Faced with Domenico’s evidence that it uniformly applied the Mountain-Driving Requirement and had not hired unqualified drivers, Mr. Kilcrease bore the burden to come forw ard with evidence suffi cient to create a factual dispute on that issue. Hawkins , 778 F.3d at 893. His failure to do so is fatal to his claim that Mr. Presho did not have the requisite mountain-driving experience when Domenico hired him. At the summary-judgment stage, Mr. Ki lcrease bore the burden to show that Domenico did not uniformly apply the M ountain-Driving Requirement, or, at the very least, to identify a disputed issue of fact on this point. Id. Because he failed to do so, we cannot conclude the district c ourt erred in rejecting his argument that Domenico failed to apply the Mountain-Driving Requirement to Mr. Rubin or to Mr. Presho. And because Mr. Kilcrease has not demonstrated that Domenico failed to17 uniformly apply the Mountain-Driving Re quirement or that the requirement is otherwise nonessential to the job, the dist rict court did not err in concluding, based on the undisputed facts, th at the Mountain-Driving Re quirement was an essential function of the job. Mr. Kilcrease Lacks Three Years of Mountain-Driving Experience. 3. Having determined that the district court properly concluded the MountainDriving Requirement is “essent ial,” we next consider Mr. Kilcrease’s argument that he put forward sufficient ev idence to preclude summary judgment on the issue of whether he satisfied that requirement. However, Mr. K ilcrease conceded in his deposition that he did not meet Domenico’s requiremen t of three years mountaindriving experience. When qu estioned about his driving experience, Mr. Kilcrease testified that he drove r outes including 6% grades only with C.R. England and ProDrivers, for whom he drove approx imately two months and six months, respectively. When asked how he arrive d at three years of mountain-driving experience on his pre-application questionnai re, Mr. Kilcrease stat ed that he “just miscalculated, mis-added all the months [he] drove in the mountains—or weeks.” When asked how much mount ain-driving experience he would put “if [he] were filling this out today,” Mr. Kilcrease responded, “Maybe a year and a half.” And when asked whether he thought he had the qualifications listed in the Domenico job18 posting, he stated “everything except the th ree years” because he “miscalculated the years” and “it was a year and a half, mainly.” 9 Moreover, Mr. Kilcrease’s argument on this point fails to meaningfully address whether any of his driving e xperience satisfies the Mountain-Driving Requirement as articulated by Domenico. Instead, Mr. K ilcrease recounts his truckdriving experience and states that “a re asonable juror could conclude, based on the above-listed experience, that Kilcrease’s experience satis fied Domenico’s alleged mountain driving policy, if su ch a policy even exists.” Bu t absent some evidence that Mr. Kilcrease had the requisi te three years of experien ce driving routes involving sustained 6% grades, a jury could only sp eculate as to whether Mr. Kilcrease’s experience satisfied the Mo untain-Driving Requirement. 10

9 At oral argument, Mr. Kilcreas e argued for the first time that McKennon v. Nashville Banner Publishing Co. , 512 U.S. 352 (1995), precluded Domenico from challenging his prima facie case with eviden ce it acquired after it made the decision not to hire him—such as this testimony from Mr. Kilc rease’s deposition. But Mr. Kilcrease conceded that he had not made th is argument in the di strict court. “If a claimant fails to pres ent an issue to the di strict court, the issu e is forfeited unless compelling reasons dictate that the forfeiture be excused.” Allman v. Colvin , 813 F.3d 1326, 1330 (10th Cir. 2016). Because Mr. Kilcrease of fered no justification for his failure to preserve this argumen t, it is forfeited on appeal. Id. 10 Mr. Kilcrease contends that, notwith standing Domenico’s Mountain-Driving Requirement, his experience is sufficient because Phil Do menico “considered routes that run between Denver, Littleton, and Greeley to be ‘mountai n driving.’” But, again, the record does not s upport this claim. In discu ssing Mr. Pete’s experience at his deposition, Phil Domenico stated that he considered driving for Mile Hi Frozen Foods to constitute mountain driving because “they go up into the mountains. They go north. They go South.” While Mr. Kilcreas e’s counsel observed th at Mile Hi “also go[es] to Littleton and Greeley” from Denver, Phil Domenico never testified that he considered those routes to constitute mountain drivi ng. Thus, Mr. Kilcrease’s argument that he could satisfy “Phil Dome nico’s definition of mountain driving”19 Given Mr. Kilcrease’s concession that he had only a year and a half of mountain-driving experience, and the lack of evidence that he ha d the requisite three years of experience to satis fy the Mountain-Driving Requi rement, he cannot establish a disputed issue of fact on this point. Because Mr. Kilc rease has not shown he was a qualified individual, the district court properly granted summary judgment to Domenico on Mr. Kilcrease’s ADA discrimination claim.
B. The District Court Properly Granted Summary Judgment on Mr. Kilcrease’s Retaliation Claim. Mr. Kilcrease also challenges the district court’ s grant of summary judgment to Domenico on his retaliation claim. To esta blish a prima facie case of retaliation, a plaintiff must show “(1) protected em ployee action; (2) adverse action by an employer either after or c ontemporaneous with the empl oyee’s protected action; and (3) a causal connection between the empl oyee’s action and the employer’s adverse action.” Morgan v. Hilti, Inc. , 108 F.3d 1319, 1324 (10th Cir. 1997). The district court granted summary judgment to Domenico on the basis that Mr. Kilcrease did not engage in protected activity until after Do menico had already ma de the decision not to hire Mr. Kilcrease, and, as a result, he could not esta blish a prima facie case of retaliation. The district court reasoned that “[t]he occurrence of the adverse employment action prior to the alleged protect ed activity renders a plaintiff unable to bring a retaliation claim.” (Quoting Hindman v. Thompson , 557 F. Supp. 2d 1293, 1305 (N.D. Okla. 2008).)

because he drove routes betw een Denver, Littleton, and Gr eeley and “similar routes along I-25” is unavailing.20 Mr. Kilcrease challenges the district c ourt’s decision, arguing that Domenico’s “fail[ure] to reconsider Mr. Kilcrease’s qua lifications after his pr otected activity and deciding not to hire Kilcrease” constitu tes a “second refusal to hire.” But Mr. Kilcrease provides no legal support for the id ea that an employer’s refusal to revisit an adverse employment decision—a decision made before the employee engaged in protected activity—can constitute retaliation. Our decision in Sabourin v. University of Utah , 676 F.3d 950 ( 10th Cir. 2012), is instructive. There, an employee was laid off after “ going over [his supervisor’s] head to obtain FMLA leave, ” and he asserted that th e supervisor’s decision to eliminate his position was in retaliation. Id. at 958. The district court granted summary judgment to the employer, and the employee appealed. The undisputed evidence showed that the plai ntiff’s supervisor had submitt ed a request to eliminate the position five days before she learned the plaintiff was seeking FMLA leave. Id. The plaintiff argued for various reasons th at the decision to terminate his position “must have still been tentative” until he was actually notified of his termination, which did not occur until after he had begun his FMLA leave. Id. at 959. But we concluded the undisputed fact s disclosed no “hesitation or reconsideration” on the part of his supervisor a nd determined the evidence was “unequivocal that the reduction-in-force decision had already been made” at the time the request to eliminate the position was submitted. Id. Accordingly, we held there was “no genuine issue that the reduction in fo rce was wholly independent of [the plaintiff’s] request for FMLA leave,” and theref ore “the reduction in for ce was not related to the21 exercise or attempted exercise of [the plaintiff’s] FMLA rights.” Id. (internal quotation marks omitted). We concluded the plaintiff’s retaliation claim therefore failed for lack of a causal connection between the prot ected activity and the adverse employment action, and we affirmed the dist rict court’s grant of summary judgment. Id. Here, Mr. Kilcrease’s affidavit and de position testimony establish that Phil Domenico called and told him that Domeni co would not consider him for a position with the company. When Mr. Kilcrease protes ted that Domenico’s refusal to hire him might implicate the ADA, Phil Domenico “m ade no further inquiries regarding [his] qualifications, or whether [his] present health condition would allow [him] to perform the functions of the job.” Rather “[t]hat was the end of the call.” In his opposition to summary judgment, Mr. Kilcr ease admitted that Phil Domenico had already made the decision not to hire hi m before the call. And, critically, Mr. Kilcrease did not dispute Domeni co’s factual assertion that [Mr.] Kilcrease’s mention of the ADA or his threat of a lawsuit did not cause Domenico to change its course of action with him as Domenico had already decided to not m ove him forward in the hiring process, nor did it cause Domenico to take any add itional action against Kilcrease. Rather, Mr. Kilcrease admitted that “Ph il Domenico made no inquiries into Mr. Kilcrease’s qualifications or whether his pr esent health condition would allow him to perform the functions of the job and instead just ended the phone call.” Based on Mr. Kilcrease’s admissions and fa ilure to dispute Domenico’s factual assertions, his retaliati on claim cannot succeed. The undi sputed facts demonstrate22 that Domenico had decided not to hire Mr. Kilcrease before contacting him. Mr. Kilcrease has not put forth any evidence that this decision was “t entative” or subject to “reconsideration,” such that Domenico ’s decision not to hire him could be understood as a respons e to his assertion of his rights under the ADA. See Sabourin , 676 F.3d at 959. Because Domenico had made an “unequivocal” decision not to hire him before Mr. Kilcrease asserted his ADA rights, and because Mr . Kilcrease has not disputed that Domenico did not change its course of action in response to that assertion, Mr. Kilcrease ca nnot establish the requisite causal connection between his protected activity and the adverse employment action. Id. He therefore cannot show that Domenico’s decision not to hire him wa s made in retaliation for his assertion of rights under the ADA. The district court correctly granted summary judgment to Domenico on this claim.

IV. CONCLUSION The undisputed facts show that Domeni co’s requirement of mountain-driving experience is an essentia l function of the job Mr. K ilcrease sought. Mr. Kilcrease failed to raise a genuine issue of fact mate rial to the question of whether he satisfied that requirement. The district court ther efore properly granted summary judgment on the basis that Mr. Kilcrease failed to estab lish he is a qualified individual under the ADA. The district court al so properly granted summary judgment to Domenico on Mr. Kilcrease’s retaliati on claim because Domenico took no adverse employment action against Mr. Kilcrease s ubsequent to his assertion of rights under the ADA. We affirm the district court’s grant of summary judgment to Domenico.