UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ DANIELLE DAVIS, Plaintiff - Appellant,

v. PHK STAFFING LLC, d/b/a Hollywood Casino at Kansas Speedway, Defendant - Appellee.

------------------------------ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Amici Curiae. No. 22-3246 (D.C. No. 2:21- CV-02142-HLT) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , McHUGH , and MORITZ , Circuit Judges.

________________ _________________ For seven months, Danielle Davis worked for PHK Staffing LLC, doing business as Hollywood Casino at Kansas Speedway. Davis suffered from severe asthma, which at times caused her to arrive late, leave early, or miss work altogether. After her employment ended, Davis sued Hollywood Casino under the American with

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judi cata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a) ; 10th Cir. R. 32.1(A). FILED United States Court of Appeals Tenth Circuit 

### December 19, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 22-3246 Document: 010110971043 Date Filed: 12/19/2023 Page: 12 Disabilities Act (ADA), 42 U.S.C. §§ 12101– 12213, alleging that it failed to accommodate her disability and then termin ated her employment because of that disability. The district court granted summar y judgment to Hollywood Casino on both claims, and Davis appeals. We affirm. For her failure-to-accomm odate claim, Davis cannot establish a prima facie case because she never request ed a plausibly reasonable accommodation. And on her disparate-treatment claim, Davis fails to pr ovide evidence that Hollywood Casino’s proffered legitimate reason for te rminating her employment—her violation of its attendance policy—was a pretext for discrimination. Background Davis began her seven-month stint at Hollywood Casino in July 2019. Hollywood Casino operates tabl e games (such as blackjack, roulette, and craps), and Davis worked in a dual role as a table-games dealer and supervisor. Throughout Davis’s employment, Holly wood Casino maintained a “no-fault attendance policy.” App. vol. 2, 6. Under that policy, employees accumulate points for attendance “incidents” such as arriving late, leaving ear ly, and being absent. App. vol. 1, 92. If an employee accrues more than 12 points in a rolling 12-month period, “[t]ermination will result.” Id. at 91. Only certain absences do not count towards this limit, including those taken for bereavemen t or for work-related injuries. Hollywood Casino’s no-fault attendance policy “expresse s [its] requirement that employees be present and ready to work fo r the entirety of each schedul ed shift.” App. vol. 2, 6. When Davis began working at Hollywo od Casino, she asked Stephanie Beck, Appellate Case: 22-3246 Document: 010110971043 Date Filed: 12/19/2023 Page: 23 who worked in human resources, about the av ailability of leave under the Family and Medical Leave Act (FMLA) for her severe asthma. Beck explained that Davis could not obtain FMLA leave until she had worked at Hollywood Casino for one year and that she could instead request an acco mmodation under the casino’s ADA policy. Soon after this conversation, Davis in formed Beck that she might need an accommodation, and Beck gave her documents to request one. But Davis decided not to proceed with the request at the time, believing she could comply with the attendance policy until she qua lified for FMLA leave. In October 2019, Davis’s asthma symp toms worsened. On one occasion, she suffered an asthma attack at work, causing her to leave ea rly. And a week later, she missed work because of an asthma flare- up. Davis received 3.5 points for these two attendance incidents. The next month, Davis formally requested an accommodation for her disability. In particular, sh e asked Hollywood Casino to (1 ) not assess any attendance points or “h[o]ld [it] against her” if she “call[ed] in or le [ft] early due to [a] severe asthma attack” and (2) remove the point s she received for th e two asthma-related attendance incidents in Octobe r. App. vol. 1, 101. Davis also submitted a verification form completed by her physician, which st ated that she had severe asthma and recommended leave as an accommodati on. Two days after submitting the accommodation request and veri fication form, Davis again missed work because of her asthma and received one attendance point. She saw her physician that day and later gave Hollywood Casino a doctor’s note confirming as much. The note also Appellate Case: 22-3246 Document: 010110971043 Date Filed: 12/19/2023 Page: 34 reiterated that Davis “may need days off from work in the fu ture due to chronic asthma and other flare-ups.” Id. at 110. After reviewing these documents, Beck de termined that she needed additional information from Davis’s physician to as sess whether a reasonable accommodation was available. Beck attempted to obtain th at information over the next few months, but Davis’s physician was unresponsive a nd eventually just faxed back the verification form Davis had originally s ubmitted. Citing insufficient information, Hollywood Casino denied Davis’s accomm odation request in February 2020. Later that month, Davis wa s late to work due to an asthma attack. Davis received 1.5 points for her tardiness, whic h raised her total poi nts to 13—above the 12-point limit under Hollywood Casino’s attendance policy. When Davis arrived at the casino, she visited Beck in human resour ces to discuss the situation. The parties dispute what happened next: Davis maintains that Hollyw ood Casino fired her at the meeting, and Hollywood Casino asserts that she resigned before it could do so. In either event, Davis’s employm ent ended in February 2020. Davis then sued Hollywood Casino under the ADA, alleging that it failed to accommodate her disability and terminat ed her employment because of her disability. 1 The district court awarded summar y judgment to Hollywood Casino on both her failure-to-accommodate a nd disparate-treatment claims. 2 Davis appeals.

1 Davis also asserted an ADA retaliati on claim, but she has abandoned that claim on appeal. 2 To distinguish it from her failure-to-a ccommodate claim, the district court referred to Davis’s claim that Hollywo od Casino discrimina ted against her by Appellate Case: 22-3246 Document: 010110971043 Date Filed: 12/19/2023 Page: 45 Analysis Davis argues that the district court e rred in granting summary judgment to Hollywood Casino. We review the district court’s summary-judgment order de novo, applying the same standard as the district court. Aubrey v. Koppes , 975 F.3d 995, 1004 (10th Cir. 2020). Under this standard, summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Ci v. P. 56(a). We addr ess Davis’s failure-toaccommodate and disparate-tr eatment claims in turn. 3
I. Failure to Accommodate To establish a prima facie failure-to-acco mmodate claim, Davis must “make an initial showing that ‘(1) she is disabled; (2 ) she is “otherwise qualified”; and (3) she requested a plausibly re asonable accommodation.’” Herrmann v. Salt Lake City

terminating her employment because of her disability as the “dis crimination claim.” App. vol. 2, 157. But an employer’s fa ilure to provide a reasonable accommodation to an otherwise qualified employee is also a type of discrimi nation under the ADA. See 42 U.S.C. § 12112(b)(5)(A); Exby-Stolley v. Bd. of Cnty. Cmm’rs , 979 F.3d 784, 797 (10th Cir. 2020) (en banc). Because this cas e involves two different discrimination claims, we refer to what the district court called Davis’s “discrimination claim” as her “disparate-treatment claim.” See Edmonds-Radford v. Sw. Airlines Co. , 17 F.4th 975, 989 (10th Cir. 2021). 3 Before doing so, we pause to note th at the Equal Employment Opportunity Commission filed an amicus brief suppor ting Davis in which it makes several arguments that she does not advance on app eal. Because an amicus is not a party, “we ordinarily decline to consider arguments raised only by an amicus.” Sierra Club v. EPA , 964 F.3d 882, 897 n.15 (10th Cir. 20 20). And we take that path here, discerning no reason “to stray from the par ties’ properly[ ]preserved arguments.” Dutcher v. Matheson , 840 F.3d 1183, 1204 (10th Cir. 2016); see also Tyler v. City of Manhattan , 118 F.3d 1400, 1404 (10t h Cir. 1997) (explaining that although we have discretion to reach arguments made solely in amicus brief, “we should exercise that discretion only in exceptional circumstances”). Appellate Case: 22-3246 Document: 010110971043 Date Filed: 12/19/2023 Page: 56 Corp. , 21 F.4th 666, 674 ( 10th Cir. 2021) (quoting Punt v. Kelly Servs. , 862 F.3d 1040, 1050 (10th Cir. 2017)). If she does so, the bur den shifts to Hollywood Casino to present evidence e ither “conclusively rebutting one or more elements of [Davis]’s prima facie case” or “establis hing an affirmative defense.” Id. (quoting Punt , 862 F.3d at 1050). We begin and end with the third element of the prima facie test: whether Davis requested a plausibly reasonable acco mmodation. A reasonable accommodation is one that “presently, or in the near futu re, enable[s] the empl oyee to perform the essential functions of h[er] job.” Aubrey , 975 F.3d at 1007 (quoting Lincoln v. BNSF Ry. Co. , 900 F.3d 1166, 1205 (10th Cir. 2018)). “The determination of whether a requested accommodation is reasonable must be made on the facts of each case[,] taking into consideration the particular individual’s disability and employment position.” Id. (quoting Punt , 862 F.3d at 1050). Davis c ontends that she requested two plausibly reasonable accommodations: (1 ) unscheduled leave as necessary; and (2) removal of the points sh e accrued for her two asthma -related attendance incidents in October 2019.
A. Unscheduled Leave We first consider Davis’s request th at Hollywood Casino allow her to leave early, arrive late, and miss wo rk altogether on an unsche duled, as-needed basis. The district court determined that this open-e nded leave request woul d require eliminating an essential function of Davis’s job: regular a nd reliable attendance. See Mason v. Avaya Commc’ns, Inc. , 357 F.3d 1114, 1119 (10th Cir. 2004) (“[P]hysical attendance Appellate Case: 22-3246 Document: 010110971043 Date Filed: 12/19/2023 Page: 67 in the workplace is itself an essential functi on of most jobs.”). And for that reason, the district court concluded, the requested accommodation was unreasonable. See
Unrein v. PHC-Fo rt Morgan, Inc. , 993 F.3d 873, 878 (10th Cir. 2021) (“[A]n employee’s request to be relieved from an essential function of her position is not, as a matter of law, a reasonable or ev en plausible accommodation.” (quoting Punt , 862 F.3d at 1051)). Challenging this conclusion, Davis argues that a genuine dis pute exists as to whether regular and reliable attendance is an essential job f unction. But Hollywood Casino’s vice president of human resource s explained that regular and reliable attendance is itself an esse ntial function, and a prere quisite to other essential functions, of all positions at the casino. This is particular ly true for employees in the table-games department, the vice presiden t stated, because they operate table games—the core service Holly wood Casino offers its customers—in person at the casino. According to the vice president, unscheduled abse nces by dealers “can result in insufficient staffing to [run] the desi red number of table games,” making such absences especially disr uptive. App. vol. 1, 151

. And it is undisputed that Hollywood Casino’s no-fault attendance policy “expresse s [its] requirement that employees be present and ready to work for the entirety of each scheduled shift.” App. vol. 2, 6. To be sure, regular and reliable a ttendance does not become an essential function simply because Hollywood Casino sa ys so. Davis could re but that assertion with evidence that the attendance requirement was not “job-related, uniformly enforced, [or] consistent with business necessity.” Mason , 357 F.3d at 1119. But Appellate Case: 22-3246 Document: 010110971043 Date Filed: 12/19/2023 Page: 78 without such evidence, we generally defe r to the employer’s j udgment about whether a job function is essential. Id. Davis offers no rebuttal evidence here. Instead, she simply highlights that Hollywood Casino’s attendance policy allows for some uns cheduled absences, such as when an employee misses wo rk because of a death in th e family or a work-related injury. But Davis does not explain, and we fail to see, how th e mere fact that Hollywood Casino excuses unscheduled abse nces in these limited circumstances undermines its judgment about whether regular and reliable attendance is an essential job function. See Samper v. Providence St. Vincent Med. Ctr. , 675 F.3d 1233, 1239 (9th Cir. 2012) (holding that regular atte ndance constituted esse ntial function even though employer’s attendance policy “allow[ ed] for some unplanned absences”); Higgins v. Union Pac. R.R. Co. , 931 F.3d 664, 670 (8th Cir. 2019) (“The fact that the attendance policy allows for ‘personal lay-offs’ under cert ain circumstances does not create a material question of fact regard ing whether job attendance is an essential function.”). Thus, the distri ct court properly concluded that regular and reliable attendance is an essential job function. Davis next contends that ev en if regular and reliable attendance is an essential job function, she could have performed th is function had Hollywood Casino allowed her to take unscheduled abse nces as needed. To be sure , as Davis emphasizes, leave can constitute a reasonable accommodation even when attendance is an essential job function—it “may allow an em ployee sufficient tim e to recover from an injury or illness such that the employee can perform the essentia l functions of the job (i.e., Appellate Case: 22-3246 Document: 010110971043 Date Filed: 12/19/2023 Page: 89 attend work) in the future.” Punt , 862 F.3d at 1051 (quoting Cisneros v. Wilson , 226 F.3d 1113, 1129 (10th Cir. 2000), overruled on other grounds by Bd. of Trs. of Univ. of Ala. v. Garrett , 531 U.S. 356 (2001)). But “the term ‘reasonable accommodation’ refers to those accommodations which presently, or in the near future , enable the employee to perform the essen tial functions of his job.” Id. (quoting Cisneros , 226 F.3d at 1129). So “a request for indefinite leave is not reas onable as a matter of law.”
Herrmann , 21 F.4th at 676. And Davis’s request was just that: a re quest for an open-ended, indefinite amount of time off from work. Indeed, she asked that Hollywood Casino allow her to “call[] in or leave[] early” as needed, on an unscheduled basis, without accumulating any attendance points. App. vol. 1, 101. This proposed accommodation would have permitted Davis to work an open-ended schedule with the freedom to arrive late, leave early, or stay home as of ten as she felt she needed to , for an indefinite length of time. We agree with the district court th at such an open-ende d leave request—which effectively sought an exemption from the essential job functi on of regularly and reliably attending work—was unreasonable. See Unrein , 993 F.3d at 878 (holding that employee’s request fo r flexible schedule sought “unreasonable accommodation as a matter of law” where “physical pres ence . . . on a set and predictable schedule” constituted essential job function). Resisting this conclusion, Davis attempts to disput e the open-endedness of her leave request. She contends that a reasona ble jury could find she intended to use intermittent leave under the ADA only until she became eligible for FMLA leave. As Appellate Case: 22-3246 Document: 010110971043 Date Filed: 12/19/2023 Page: 910 support, Davis notes that she requested this accommoda tion after asking Beck about the availability of FMLA leave and learning that she did not yet qualify for it. But no record evidence suggests that Davis ever informed Hollywood Ca sino she needed the accommodation only until she could obtain FMLA leave or th at Hollywood Casino understood as much; nor is there any ev idence that Davis esti mated how often she would need to miss work until she had access to FMLA leav e. Davis therefore failed to establish a genuine dispute about th e open-endedness of her leave request. Cf.
Dansie v. Union Pac. R.R. Co. , 42 F.4th 1184, 1195 (10th Cir. 2022) (holding that employee established genui ne dispute over leave re quest’s open-endedness by providing evidence that “he requested up to five days off per month for a specific period of time—until he could obtain FMLA leave”). For these reasons, no reasonable jury could find th at Davis’s leave request was plausibly reasonable.
B. Removal of Attendance Points We next consider Davis’s request th at Hollywood Casino remove the points she received for her two October 2019 asthma -related attendance incidents. In the district court’s view, this point-removal request merely asked Hollywood Casino to excuse past misconduct and was therefore unreasonable. See DeWitt v. Sw. Bell Tel.
Co. , 845 F.3d 1299, 1316 (10th Cir. 2017) (holding that ADA “does not require employers to reasonably accommodate an em ployee’s disability by overlooking past misconduct,” even if such “misconduct resulted from the employee’s disability”). On appeal, Davis argues that she never sought forgiveness for any misconduct. Contrary to the district court’s view, Davi s says, missing work “does not necessarily Appellate Case: 22-3246 Document: 010110971043 Date Filed: 12/19/2023 Page: 1011 amount to ‘misconduct’ when considering th e plain meaning of the word.” Aplt. Br. 28. But even if we agreed with Davis, it would not render her point-removal request plausibly reasonable. “An em ployer may impose disciplinar y action, consistent with its policies as applied to other employees, for attendance problems that occurred prior to a request for reasonable accommodation, ” and the ADA does not require it to rescind such discipline when asked to do so. U.S. Equal Emp. Opportunity Comm’n, The Americans with Disab ilities Act: Applying Perform ance and Conduct Standards to Employees with Disabilities, 2008 WL 4786697, at *23 (2008); see also DeWitt , 845 F.3d at 1318 (“[A] denied request for retroactive leniency cannot support an accommodation claim . . . .”). Here, the Oc tober 2019 attendance incidents occurred before Davis made her accommodation request, so Hollywood Casino had no obligation to withdraw the points it gave her for those incidents. Moreover, Davis fails to show that granting her point-rem oval request would have equipped her to attend work regularly and reliably moving forward. Indeed, as her open-ended leave request and attendance incidents illustrate, Davis needed more flexibility and time off from work than this accommodation would have given her. See Aubrey , 975 F.3d at 1007 (explaining that for accommodation to be reasonable, it must “presently, or in the near future, enable the employee to perform the essential functions of h[er] job”). For these reasons, Davis’s point-removal request was not plau sibly reasonable. Because neither accommodation she request ed was plausibly reasonable, Davis failed to establish a prima facie case for fa ilure to accommodate. See Herrmann , 21 Appellate Case: 22-3246 Document: 010110971043 Date Filed: 12/19/2023 Page: 1112 F.4th at 674. The district court theref ore properly granted summary judgment to Hollywood Casino on Davis’s failu re-to-accommodate claim. II. Disparate Treatment As for her disparate-treatment clai m, Davis proceeds under the familiar burden-shifting framework established in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). See Edmonds-Radford , 17 F.4th at 989. At the first step of this framework, Davis must establish a pr ima facie case of discrimination. Id. This requires Davis to show that “(1) she is disabled within the meaning of the ADA, (2) she is qualified to perform the essent ial functions of the job with or without accommodation, and (3) she suffered an a dverse employment action because of her disability.” Id. at 989–90. At the second step, the burden shifts to Hollywood Casino to “offer a legitimate, nondiscrimi natory reason for termination.” Id. at 990. If Hollywood Casino does so, the bu rden returns to Davis at the third step “to show a genuine issue as to whether [t hat] reason was pretextual.” Id. For our purposes, we will a ssume that Davis establishe d a prima facie case of discrimination. And we agree with the dist rict court that Holly wood Casino offered a legitimate, nondiscriminatory reason for terminating her employment: Davis accrued more than 12 points in a rolling 12-month period, in violation of the attendance policy. We therefore focus our analysis on pretext. To show pretext, Davis “must come forward with eviden ce that [Hollywood Casino] didn’t really believe its proffered reason[] for acti on and thus may have been pursuing a hidden discri minatory agenda.” DeWitt , 845 F.3d at 1307. She can do so Appellate Case: 22-3246 Document: 010110971043 Date Filed: 12/19/2023 Page: 1213 by exposing “such weaknesses, implausibili ties, inconsistencies, incoherences, or contradictions in [Hollywood Casino]’s pr offered legitimate re ason[] for its action that a reasonable factfinder could rationall y find [that reason] un worthy of credence.” Id. (quoting Morgan v. Hilti, Inc. , 108 F.3d 1319, 1323 (10th Cir. 1997)). Typically, a plaintiff establishes pretex t with evidence that : (1) “the defendant’s stated reason for the adverse employment action was false”; (2) “the defendant acted contrary to a written company policy prescrib ing the action to be taken by the defendant under the circumstances”; or (3) the defendant trea ted the plaintiff “dif ferently from other similarly[ ]situated employees who violated work rules of comparable seriousness.” Id. (quoting Kendrick v. Penske Transp. Servs., Inc. , 220 F.3d 1220, 1230 (10th Cir. 2000)). Davis asserts that a genuine issue of materi al fact exists as to pretext. Yet she points to no evidence suggesting that Holl ywood Casino’s reason for terminating her employment was false or contrary to a writt en policy; she does not dispute that she accumulated 13 points in a rolling 12-m onth period and that Hollywood Casino’s attendance policy requires term ination in this situation. Nor does Davis point to evidence that Hollywood Casino treated her differently from other similarly situated employees. Indeed, she identifies no empl oyee who received leniency under the attendance policy for arriving late, leaving early, or miss ing work altogether on an unscheduled basis for medical reasons. In short, Davis o ffers no evidence that would allow a reasonable jury to find Hollywood Ca sino’s stated reason for terminating her employment “unworthy of credence.” Id. (quoting Morgan , 108 F.3d at 1323). Davis Appellate Case: 22-3246 Document: 010110971043 Date Filed: 12/19/2023 Page: 1314 therefore failed to establish a genuine dispute of material fa ct as to pretext, and the district court correctly granted summary judgment for Hollywood Casino on her disparate-treatment claim.
Conclusion Davis failed to establish a genuine dispute of material fact on her ADA disability claims. As to her failure-to-a ccommodate claim, Da vis cannot establish a prima facie case because neither her open- ended leave request nor her point-removal request was plausibly reasona ble. And as to her dispar ate-treatment claim, Davis failed to present ev idence that Hollywood Casino’s le gitimate reason for terminating her employment—her attendanc e-policy violation—was a pr etext for discrimination. We therefore affirm the district cour t’s order granting summary judgment to Hollywood Casino.

Entered for the Court
Nancy L. Moritz Circuit Judge Appellate Case: 22-3246 Document: 010110971043 Date Filed: 12/19/2023 Page: 14