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* This order and judgment is not binding precedent, except under the doctrines 

of law of the case, res judicata, 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

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Disabilities Act (ADA), 42 U.S.C. §§ 12101–12213, alleging that it failed to 

accommodate her disability and then terminated her employment because of that 

disability. The district court granted summary judgment to Hollywood Casino on 

both claims, and Davis appeals. 

We affirm. For her failure-to-accommodate claim, Davis cannot establish a 

prima facie case because she never requested a plausibly reasonable accommodation. 

And on her disparate-treatment claim, Davis fails to provide evidence that Hollywood 

Casino’s proffered legitimate reason for terminating 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 table 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, Hollywood 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 early, 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 bereavement or for work-related injuries. Hollywood 

Casino’s no-fault attendance policy “expresses [its] requirement that employees be 

present and ready to work for the entirety of each scheduled shift.” App. vol. 2, 6. 

When Davis began working at Hollywood Casino, she asked Stephanie Beck, 

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who worked in human resources, about the availability 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 accommodation under the casino’s ADA policy. 

Soon after this conversation, Davis informed 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 qualified for FMLA leave. 

In October 2019, Davis’s asthma symptoms worsened. On one occasion, she 

suffered an asthma attack at work, causing her to leave early. 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, she 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 points she received for the two asthma-related 

attendance incidents in October. App. vol. 1, 101. Davis also submitted a verification 

form completed by her physician, which stated that she had severe asthma and 

recommended leave as an accommodation. Two days after submitting the 

accommodation request and verification 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 

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reiterated that Davis “may need days off from work in the future due to chronic 

asthma and other flare-ups.” Id. at 110. 

After reviewing these documents, Beck determined that she needed additional 

information from Davis’s physician to assess whether a reasonable accommodation 

was available. Beck attempted to obtain that information over the next few months, 

but Davis’s physician was unresponsive and eventually just faxed back the 

verification form Davis had originally submitted. Citing insufficient information, 

Hollywood Casino denied Davis’s accommodation request in February 2020. 

Later that month, Davis was late to work due to an asthma attack. Davis 

received 1.5 points for her tardiness, which raised her total points to 13—above the 

12-point limit under Hollywood Casino’s attendance policy. When Davis arrived at 

the casino, she visited Beck in human resources to discuss the situation. The parties 

dispute what happened next: Davis maintains that Hollywood Casino fired her at the 

meeting, and Hollywood Casino asserts that she resigned before it could do so. In 

either event, Davis’s employment ended in February 2020.

Davis then sued Hollywood Casino under the ADA, alleging that it failed to 

accommodate her disability and terminated her employment because of her 

disability.1

 The district court awarded summary judgment to Hollywood Casino on 

both her failure-to-accommodate and disparate-treatment claims.2

 Davis appeals. 

1

 Davis also asserted an ADA retaliation claim, but she has abandoned that 

claim on appeal. 

2

 To distinguish it from her failure-to-accommodate claim, the district court 

referred to Davis’s claim that Hollywood Casino discriminated against her by 

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Analysis 

Davis argues that the district court erred 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. Civ. P. 56(a). We address Davis’s failure-toaccommodate and disparate-treatment claims in turn.3

I. Failure to Accommodate 

To establish a prima facie failure-to-accommodate claim, Davis must “make an 

initial showing that ‘(1) she is disabled; (2) she is “otherwise qualified”; and (3) she 

requested a plausibly reasonable accommodation.’” Herrmann v. Salt Lake City 

terminating her employment because of her disability as the “discrimination claim.” 

App. vol. 2, 157. But an employer’s failure to provide a reasonable accommodation 

to an otherwise qualified employee is also a type of discrimination 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 case 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 that the Equal Employment Opportunity 

Commission filed an amicus brief supporting Davis in which it makes several 

arguments that she does not advance on appeal. 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. 2020). And we take that path here, 

discerning no reason “to stray from the parties’ 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 (10th 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”). 

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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 burden shifts to Hollywood Casino 

to present evidence either “conclusively rebutting one or more elements of [Davis]’s 

prima facie case” or “establishing 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 accommodation. A reasonable accommodation is 

one that “presently, or in the near future, enable[s] the employee 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 contends that she requested 

two plausibly reasonable accommodations: (1) unscheduled leave as necessary; and 

(2) removal of the points she accrued for her two asthma-related attendance incidents 

in October 2019. 

A. Unscheduled Leave 

We first consider Davis’s request that Hollywood Casino allow her to leave 

early, arrive late, and miss work altogether on an unscheduled, as-needed basis. The 

district court determined that this open-ended leave request would require eliminating 

an essential function of Davis’s job: regular and reliable attendance. See Mason v. 

Avaya Commc’ns, Inc., 357 F.3d 1114, 1119 (10th Cir. 2004) (“[P]hysical attendance 

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in the workplace is itself an essential function of most jobs.”). And for that reason, 

the district court concluded, the requested accommodation was unreasonable. See 

Unrein v. PHC-Fort 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 even plausible accommodation.” (quoting Punt, 862 

F.3d at 1051)). 

Challenging this conclusion, Davis argues that a genuine dispute exists as to 

whether regular and reliable attendance is an essential job function. But Hollywood 

Casino’s vice president of human resources explained that regular and reliable 

attendance is itself an essential function, and a prerequisite to other essential 

functions, of all positions at the casino. This is particularly true for employees in the 

table-games department, the vice president stated, because they operate table 

games—the core service Hollywood Casino offers its customers—in person at the 

casino. According to the vice president, unscheduled absences by dealers “can result 

in insufficient staffing to [run] the desired number of table games,” making such 

absences especially disruptive. App. vol. 1, 151. And it is undisputed that Hollywood 

Casino’s no-fault attendance policy “expresses [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 attendance does not become an essential 

function simply because Hollywood Casino says so. Davis could rebut 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 

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without such evidence, we generally defer to the employer’s judgment 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 unscheduled absences, such 

as when an employee misses work because of a death in the family or a work-related 

injury. But Davis does not explain, and we fail to see, how the mere fact that 

Hollywood Casino excuses unscheduled absences 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 attendance constituted essential 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 certain circumstances does not 

create a material question of fact regarding whether job attendance is an essential 

function.”). Thus, the district court properly concluded that regular and reliable 

attendance is an essential job function. 

Davis next contends that even if regular and reliable attendance is an essential 

job function, she could have performed this function had Hollywood Casino allowed 

her to take unscheduled absences 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 employee sufficient time to recover from an injury or 

illness such that the employee can perform the essential functions of the job (i.e., 

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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 essential functions of his job.” Id. (quoting Cisneros, 226 

F.3d at 1129). So “a request for indefinite leave is not reasonable as a matter of law.” 

Herrmann, 21 F.4th at 676. 

And Davis’s request was just that: a request 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 often as she felt she needed to, for an indefinite length of 

time. We agree with the district court that such an open-ended leave request—which 

effectively sought an exemption from the essential job function of regularly and 

reliably attending work—was unreasonable. See Unrein, 993 F.3d at 878 (holding 

that employee’s request for flexible schedule sought “unreasonable accommodation 

as a matter of law” where “physical presence . . . on a set and predictable schedule” 

constituted essential job function). 

Resisting this conclusion, Davis attempts to dispute the open-endedness of her 

leave request. She contends that a reasonable jury could find she intended to use 

intermittent leave under the ADA only until she became eligible for FMLA leave. As 

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support, Davis notes that she requested this accommodation 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 Casino she needed the 

accommodation only until she could obtain FMLA leave or that Hollywood Casino 

understood as much; nor is there any evidence that Davis estimated how often she 

would need to miss work until she had access to FMLA leave. Davis therefore failed 

to establish a genuine dispute about the 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 genuine dispute over leave request’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 that Davis’s leave request was plausibly reasonable. 

B. Removal of Attendance Points 

We next consider Davis’s request that 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 employee’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, Davis says, missing work “does not necessarily 

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amount to ‘misconduct’ when considering the 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 employer may impose disciplinary 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 Disabilities Act: Applying Performance 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 October 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-removal 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 plausibly reasonable. 

Because neither accommodation she requested was plausibly reasonable, Davis 

failed to establish a prima facie case for failure to accommodate. See Herrmann, 21 

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F.4th at 674. The district court therefore properly granted summary judgment to 

Hollywood Casino on Davis’s failure-to-accommodate claim. 

II. Disparate Treatment 

As for her disparate-treatment claim, 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 prima 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 essential functions of the job with or without 

accommodation, and (3) she suffered an adverse employment action because of her 

disability.” Id. at 989–90. At the second step, the burden shifts to Hollywood Casino 

to “offer a legitimate, nondiscriminatory reason for termination.” Id. at 990. If 

Hollywood Casino does so, the burden returns to Davis at the third step “to show a 

genuine issue as to whether [that] reason was pretextual.” Id. 

 For our purposes, we will assume that Davis established a prima facie case of 

discrimination. And we agree with the district court that Hollywood 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 evidence that [Hollywood 

Casino] didn’t really believe its proffered reason[] for action and thus may have been 

pursuing a hidden discriminatory agenda.” DeWitt, 845 F.3d at 1307. She can do so 

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by exposing “such weaknesses, implausibilities, inconsistencies, incoherences, or 

contradictions in [Hollywood Casino]’s proffered legitimate reason[] for its action 

that a reasonable factfinder could rationally find [that reason] unworthy of credence.” 

Id. (quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)). Typically, 

a plaintiff establishes pretext 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 prescribing the action to be taken by the defendant under the 

circumstances”; or (3) the defendant treated the plaintiff “differently 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 material fact exists as to pretext. Yet she 

points to no evidence suggesting that Hollywood Casino’s reason for terminating her 

employment was false or contrary to a written policy; she does not dispute that she 

accumulated 13 points in a rolling 12-month period and that Hollywood Casino’s 

attendance policy requires termination in this situation. Nor does Davis point to 

evidence that Hollywood Casino treated her differently from other similarly situated 

employees. Indeed, she identifies no employee who received leniency under the 

attendance policy for arriving late, leaving early, or missing work altogether on an 

unscheduled basis for medical reasons. In short, Davis offers no evidence that would 

allow a reasonable jury to find Hollywood Casino’s stated reason for terminating her 

employment “unworthy of credence.” Id. (quoting Morgan, 108 F.3d at 1323). Davis 

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therefore failed to establish a genuine dispute of material fact 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-accommodate claim, Davis cannot establish a 

prima facie case because neither her open-ended leave request nor her point-removal 

request was plausibly reasonable. And as to her disparate-treatment claim, Davis 

failed to present evidence that Hollywood Casino’s legitimate reason for terminating 

her employment—her attendance-policy violation—was a pretext for discrimination. 

We therefore affirm the district court’s order granting summary judgment to 

Hollywood Casino. 

Entered for the Court 

Nancy L. Moritz 

Circuit Judge 

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