* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### DEC 20 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

FRANCIS J. BRAZAS, JR.,

Plaintiff-Appellant,

v. BERNALILLO COUNTY BOARD OF COMMISSIONERS, EX REL.; BERNALILLO COUNTY SHERIFF’S DEPARTMENT,

Defendants-Appellees. No. 98-2244 (D.C. No. CIV-97-1137JC/RLP)

(D. N.M.)

ORDER AND JUDGMENT *

Before EBEL , LUCERO , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral-2-

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Plaintiff Francis J. Brazas, Jr. appeals the distri ct court’s order entering summary judgment in favor of defendants on his clai ms that they terminated his employment and retaliated against him in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. Defendants have filed a motion to dismiss the appeal. We deny the motion a nd affirm the judgment. Defendants’ motion to dismiss asserts that the district court’s judgment is not final and appealable because it disposed of onl y two of plaintiff’s three claims, remanding the third, state law claim to the state court. The dismissal and remand order rendered all claims final and appealable. See City of Waco v. United States Fidelity & Guar. Co. , 293 U.S. 140, 143 (1934) (recognizing appeal of dismissed claim even though remaining claims wer e remanded to state court). From 1986 until March 1996, plaintiff was employed by defendants as a deputy sheriff. In 1992, he was diagnosed with pos t-traumatic stress disorder (PTSD) and in 1995, he entered a three-month treatm ent program. He then returned to work on a special duty assignment and w as medically released for duty as to his PTSD on November 20, 1995. On May 18, 1995, while on special duty, plaintiff u nderwent knee replacement surgery, which left him with limited ab ilities to run and engage in-3-

other physical activities. The police physician re ported on December 19, 1995, as a result of his knee replacement, that plaintiff wa s restricted from running, jumping, wrestling, falls, fence climbing, timed la dder activity, squatting, and obstacle courses. See Appellee’s Supp. App. at 19. Consequently, the physician concluded that plaintiff was not able to perform th e essential duties of deputy sheriff. See id. Plaintiff continued on special duty assignment. On February 5, 1996, plaintiff filed a charge of di scrimination with the New Mexico Human Rights Division claiming he was di scriminated against on the basis of physical and mental impairments becaus e he was not permitted to perform his deputy sheriff job. On March 21, 1996, defendants terminated plaintiff’s employment on the ground that he had ab andoned his job because he had not reported to work. On January 9, 1997, plai ntiff’s treating physician stated, based on plaintiff’s description of his job as a deputy sheriff, that plaintiff could perform the running necessary to perform the job, and could perform the initial fitness run for qualification. See Appellee’s Supp. App. at 128. We review de novo the district court’s grant of sum mary judgment, viewing the record in the light most favorable to the party opposing summary judgment.
See McKnight v. Kimberly Clark Corp. , 149 F.3d 1125, 1128 (10th Cir. 1998). Summary judgment is appropriate if there is no genu ine issue of material fact and-4-

the moving party is entitled to a judgment as a matter of law. See Celotex Corp.
v. Catrett , 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c). Plaintiff claims on appeal that the district court erred in entering summary judgment because genuine issues of material fact ex ist. He maintains that the medical evidence was controverted on the issue of h is ability to meet the running requirements of his employment, and on the questionof whether reasonable accommodation of his knee condition was available. He further claims that because his employment was terminated twenty-one days after he filed a complaint of discrimination, he has established that defendants retaliated against him for engaging in protected activity. Plaintiff was required to demonstrate the following elements to establish a prima facie case under the ADA: (1) he is “disable d” as defined by the ADA, (2) he is qualified to do the job, with or without reas onable accommodation, and (3) he was discriminated against on the basis of his di sability. See Butler v. City of Prairie Village , 172 F.3d 736, 748 (10th Cir. 1999). The districtcourt held that plaintiff did not demonstrate that he was qualified as a deputy sheriff or that any reasonable accommodation would permit him to qualif y. Plaintiff’s appellate brief conflates the medical r eports pertaining to his PTSD with those pertaining to his knee condition. Our evaluation of plaintiff’s claims is hampered by his failure to include in his appendix on appeal the-5-

documents necessary to support his arguments and byhis references to the appendix that do not support his claims. See S.E.C. v. Thomas , 965 F.2d 825, 827 (10th Cir. 1992) (appellant must provide refere nces to record to carry his burden of proving error). Nevertheless, the recordshows that Dr. Echols, plaintiff’s physician, assessed his knee condition on September 26, 1995, and January 9, 1997. He claims those reports establishthat he was capable of performing the physical and agility requirements of his job. According to plaintiff, those reports controvert the opinion of the police physician who stated that he could not perform the running required of h is job, thus creating an issue of material fact sufficient to preclude summary judgme nt. Dr. Echols’ September 1995 treatment notes state th at plaintiff was able to resume his deputy sheriff duties, “ except activities which require running .” Appellee’s Supp. App. at 119 (emphasis added). Dr. Echols’ January 1997 opinion that plaintiff could perform the running re quired for the initial fitness test is irrelevant to defendants’ decision to terminate plaintiff’s employment in March 1996. Furthermore, even if plaintiff was able to p erform the running necessary to complete the initial fitness examination, he provid ed no evidence to controvert the police physician’s opinion that he could not engage in jumping, wrestling, falls, fence climbing, timed ladder activity, squatting, and obstacle courses. See id. at 19; see also id. at 41 (deputy sheriff job description requiring cr ouching, lifting,-6-

jumping, and climbing, among other things). Plaint iff argues that defendants refused to permit reasonable accommodation of his knee condition by permitting him to wear knee braces. Plaintiff submitted no ev idence to show that if he wore knee braces he could perform the necessary physical functions of the job. Accordingly, plaintiff failed to demonstrate that h e was able to perform the essential functions of deputy sheriff, with or with out reasonable accommodation. Therefore, he failed to establish a prima facie cas e of discrimination under the
ADA. To establish a prima facie case of retaliation, pla intiff was required to show (1) “[he] engaged in a protected activity,” (2) he suffered adverse employment action at the time of or soon after the protected a ctivity, and (3) there is “a causal connection between the protected activity and the a dverse employment action.” Anderson v. Coors Brewing Co. , 181 F.3d 1171, 1178 (10th Cir. 1999). Filing an EEOC claim qualifies as protected activity. See id. Termination of plaintiff’s employment constitutes adverse employment action. See id. For purposes of this appeal, we assume plaintiff was discharged. A reta liatory motive may be inferred when an adverse action closely follows protected ac tivity. See Chavez v. City of Arvada , 88 F.3d 861, 866 (10th Cir. 1996). Here, defendants terminated plaintiff twenty-one days after he filed his EEOC complaint. Assuming plaintiff established a p rima facie case of retaliation,-7-

he has offered no evidence to show that defendants’ legitimate reason for terminating his employment was pretextual. See Anderson , 181 F.3d at 1179. As discussed above, plaintiff was not qualified for th e job of deputy sheriff. The evidence “supports [defendants’] proffered reason and [p]laintiff presents nothing which would cause a reasonable finder of fact to de termine that the reason was unworthy of belief. Therefore, [p]laintiff cannot show pretext.” Id. at 1179-80 (citations omitted). Summary judgment was appropri ate on plaintiff’s retaliation claim. Defendants’ motion to dismiss the appeal is DENIED. The judgment of the United States District Court for the District of Ne w Mexico is AFFIRMED.

Entered for the Court

David M. Ebel Circuit Judge