author: HOLMES, Circuit Judge.

text:
    Janna DEWITT, Plaintiff-Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Defendant-Appellee
    No. 14-3192
    United States Court of Appeals, Tenth Circuit.
    Filed January 18, 2017

      Ryan K. Elliot, Disability Rights Center of Kansas, Topeka, Kansas (Amy L. Coop-man, Foland, Wickens, Eisfelder, Roper & Hofer, P.C., Kansas City, Missouri, with him on the briefs), for Plaintiff-Appellant.
    Michael L. Matula, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Kansas City, Missouri (Adam T. Pankratz, Ogle-tree, Deakins, Nash, Smoak & Stewart, P.C., Kansas City, Missouri, with him on the brief), for Defendant-Appellee.
    Before KELLY, BALDOCK, and HOLMES, Circuit Judges.
   HOLMES, Circuit Judge.

Janna DeWitt appeals from the district court’s order granting summary judgment to her former employer, Southwestern Bell Telephone Company (“SWBTC”), on her claims of disability discrimination and failure to accommodate her disability in violation of the Americans with Disabilities Act (“ADA”), as amended by ADA Amendments Act of 2008 (“ADAAA”), Pub. L. No. 110-325,122 Stat. 3553,42 U.S.C. § 12101 et seq., and retaliation in violation of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I

A'

SWBTC is a telephone service company with a customer-service call center in Wichita, Kansas. Ms. DeWitt began working at SWBTC’s Wichita call center as a customer service representative in April 1997. In this role, Ms. DeWitt answered calls from customers requesting residential service from SWBTC.

Ms. DeWitt has Type I diabetes and is insulin dependent. Ms. DeWitt monitors her blood sugar levels numerous times per day. When Ms. DeWitt’s blood sugar levels are relatively low, she may experience sweating, shakiness, fatigue, lethargy, confusion, and poor coordination. Ms. DeWitt told her managers at SWBTC that she had diabetes and that she may experience low blood sugar levels and need to eat or drink something to correct them. Throughout her employment at SWBTC, the company allowed Ms. DeWitt to take breaks to eat or drink to raise her blood sugar as needed.

In 2009 and early 2010, Ms. DeWitt used FMLA leave intermittently for health issues related to her diabetes. Ms. DeWitt only took FMLA leave when vacation days were not available because Ms. DeWitt believed that SWBTC “frowned upon” employees taking FMLA leave. Aplt’s App. at 434 (DeWitt Dep., dated May 3, 2013). Suzanne Garcia, a former manager at SWBTC, stated that when a customer service representative used “FMLA leave[, it] negatively impacted the sales quotas of the sales manager.” Id. at 440 (Garcia Decl., dated July 7, 2014). As a result, “[s]ome employees using FMLA leave were targeted as employees that [SWBTC] wanted to terminate” and SWBTC “looked for other reasons to terminate that employee.” Id, Moreover, Ms. Garcia stated that “Ms. De-Witt was on the ‘target list’ as an employee who used FMLA leave and should be fired if possible for other reasons.” Id. at 441. Ms. Garcia left SWBTC in 2008. Id, at 440.

Ms. Garcia specifically identified Beth Kloxin as one of the SWBTC managers that “discussed terminating employees using FMLA leave.” Id. at 441. Ms. Kloxin was the Center Support Manager charged with “do[ing] the attendance, disabilities,” and also “preparing ... separation proposals.” Id. at 87 (Kloxin Dep., dated Aug. 23, 2013). Employees called Ms. Kloxin if they were going to be absent or if they wanted to request FMLA leave.

On January 21, 2010, Ms. DeWitt mistakenly left phone service on a customer’s account after the customer cancelled the service. Known as a cramming violation, the failure to remove a service plan from a customer’s account after the customer cancels the service is a violation of the SWBTC Code of Business Conduct and a terminable offense. Ms. DeWitt was suspended the following day. On January 29, 2010, Ms. DeWitt attended a “Day in Court” to address the cramming incident and determine her punishment. As punishment for the cramming violation, Ms. De-Witt’s Second Line Supervisor, Henry Rivera, in consultation with Ms. DeWitt’s Third Line Supervisor, Kimberly Baskett-McEnany, decided to place Ms. DeWitt on a Last Chance Agreement. The Last Chance Agreement stated that “even one incident of failing to maintain satisfactory performance in all components of [her] job, including ... company polieies[ ] and conduct may lead to further disciplinary action up to and including dismissal.” Id. at 39 (Last Chance Agreement, filed Sept. 13, 2012).

On March 3, 2010, two months after the cramming incident, Ms. DeWitt suffered a severe drop in blood sugar while at work. She was unable to stabilize her blood sugar even after eating food and drinking juice. As a result, Ms. DeWitt experienced lethargy, disorientation, and confusion, and was “unable to communicate with anyone.” Id. at 14-15, 26-27. Ms. DeWitt noticed that she was locked out of her computer and called her First Line Supervisor, Tom Heumann, for assistance. Mr. Heumann did not address her computer issues, and instead informed Ms. Kloxin that he had been monitoring Ms. DeWitt’s calls and that she had hung up on at least two customers. Ms. Kloxin responded by “doing a dance” and saying, “I finally got that bitch.” Id. at 458 (Rivera Dep., dated Oct. 1, 2013). Mr. Rivera told Ms. Kloxin that her behavior was “not appropriate.” Id. Ms. Kloxin responded, “You don’t understand. I’ve been chasing after her long before, since you got here.” Id.

Later that day, Mr. Heumann and Ms. Kloxin conducted a suspension meeting with Ms. DeWitt regarding the two calls she had dropped earlier in the day. Maddie Tormey, a union steward, also attended the meeting. Ms. DeWitt told Mr. Heu-mann that she did not remember taking the dropped calls and that “she had been experiencing dangerously low blood sugar levels at the time of the calls.” Id. at 15. After reviewing recordings of the dropped calls, Ms. DeWitt said that she “honestly [did not] remember the customer saying hello” and asked “Are you sure this is me?” Id. at 329. Mr. Heumann informed Ms. DeWitt that she was suspended and that a Day in Court regarding this matter would be held at a later date. At the request of Ms. Kloxin and Ms. Tormey, Ms. DeWitt provided her blood sugar levels for that afternoon.

On March 10, 2010, SWBTC conducted a Day in Court regarding the dropped calls and Ms. DeWitt’s employment status. Mr. Rivera, Ms. Kloxin, and Ms. DeWitt attended the meeting, and Ms. Baskett-McEnany attended via conference call. Ms. Baskett-McEnany explained that “[t]his is a time for [Ms. DeWitt] to talk about the” dropped calls and “tell [Ms. Baskets McEnany] anything about what [happened that Ms. DeWitt] want[ed] [Ms. Baskett-McEnany] to know in regards to making a decision regarding [her] employment.” Id. at 326. Ms. DeWitt explained that she did not remember taking the calls due to a severe drop in her blood sugar. On March 15, 2010, SWBTC terminated Ms. DeWitt for hanging up on two customers in violation of both the SWBTC Code of Business Conduct and her Last Chance Agreement.

B

In September 2012 — after timely filing discrimination charges with the Equal Employment Opportunity Commission and receiving her notice of right to sue — Ms. DeWitt filed a lawsuit in the United States District Court for the District of Kansas, bringing claims of unlawful discrimination, failure to accommodate her disability, and retaliation against SWBTC. Specifically, Ms. DeWitt alleged that SWBTC (1) discriminated against her in violation of the ADAAA by terminating her employment because of her disability, (2) failed to accommodate her disability in violation of the ADAAA, and (3) retaliated against her for taking FMLA leave in violation of the FMLA.

The district court granted summary judgment to SWBTC. In regard to her ADAAA termination and FMLA retaliation claims, the district court determined that Ms. DeWitt “fail[ed] to raise any inference of a pretextual termination decision.” Id. at 553 (Mem. and Order, dated Aug. 13, 2014); see id. at 561. As to her failure-to-accommodate claim, the court determined that it, too, failed as a matter of law because the ADAAA does not require an employer to make Ms. DeWitt’s suggested accommodation — that is, “to excuse or overlook her misconduct or reduce her discipline, since her conduct was related to her disability.” Id. at 555.

This timely appeal followed.

II

Ms. DeWitt’s workplace discrimination and retaliation claims were dismissed on summary judgment. “We review summary judgment determinations de novo, applying the same standard as the district court.” Smothers v. Solvay Chems., Inc., 740 F.3d 530, 538 (10th Cir. 2014). At this stage of the litigation, we “view facts in the light most favorable to ... the non-moving party and ‘draw all reasonable inferences’ in [her] favor.” Id. (quoting Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013)). Even so, the non-movant, Ms. DeWitt in this case, must “marshal[ ] sufficient evidence” requiring submission to the jury “to avoid summary judgment.” Osborne v. Baxter Healthcare Corp., 798 F.3d 1260, 1281 (10th Cir. 2015).

“Generally, summary judgment should be granted ‘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.’ ” Hawkins, 778 F.3d at 882 (quoting Fed. R. Civ. P. 56(a)). “A fact is material if, under the governing law, it could have an effect on the outcome of the lawsuit. A dispute over a material fact is genuine if a rational jury could find in favor of the nonmoving party on the evidence presented.” Smothers, 740 F.3d at 538 (quoting Tabor, 703 F.3d at 1215).

Ill

Ms. DeWitt raises three employment-related claims on appeal, each of which relies on circumstantial evidence: (1) an ADAAA discrimination claim, (2) an ADAAA accommodation claim, and (3) an FMLA retaliation claim. “This circuit analyzes employment-related claims based on circumstantial evidence under the ‘analytical framework first articulated in McDonnell-Douglas [Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ].’ ” Smothers, 740 F.3d at 538 (alteration in original) (quoting Johnson v. Weld Cty., 594 F.3d 1202, 1217 (10th Cir. 2010)). The parties’ briefing reflects their agreement that this framework applies here. Under the McDonnell Douglas burden-shifting framework, we engage in a three step analysis:

(1) First, “the plaintiff must establish a prima facie case of discrimination or retaliation,” id.;
(2) If the plaintiff satisfies this initial burden, “the defendant employer must offer a legitimate non-discriminatory reason for the adverse employment action,” id.; and
(3) The burden then shifts back to the plaintiff who “must show there is at least a genuine issue of material fact as to whether the employer’s proffered legitimate reason is genuine or pretextual,” id.

Under the final step, “[t]o support an inference of pretext, ... a plaintiff. ... must come forward with evidence that the employer didn’t really believe its proffered reasons for action and thus may have been pursuing a hidden discriminatory agenda.” Johnson, 594 F.3d at 1211. When reviewing a plaintiffs “contention of pretext, we examine the facts ‘as they appear to the person making the decision to terminate [the] plaintiff.’” Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1261 (10th Cir. 2001) (alteration in original) (quoting Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1231 (10th Cir. 2000)). “We may not second guess the business judgment of the employer.” Id.

“Pretext can be shown by ‘such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.’ ” Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (quoting Olson v. Gen. Elec. Astrospace, 101 F.3d 947, 951-52 (3d Cir. 1996)). “[M]ere conjecture that [the] employer’s explanation is a pretext for intentional discrimination is an insufficient basis for denial of summary judgment.” Id. (alterations in original) (quoting Branson v. Price River Coal Co., 853 F.2d 768, 772 (10th Cir. 1988)).

Evidence of pretext “may take a variety of forms.” Kendrick, 220 F.3d at 1230 (quoting Patterson v. McLean Credit Union, 491 U.S. 164, 187-88, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989)). Typically, a plaintiff may show pretext in one of three ways:

(1) with evidence that the defendant’s stated reason for the adverse employment action was false; (2) with evidence that the defendant acted contrary to a written company policy prescribing the action to be taken by the defendant under the circumstances; or (3) with evidence that.... [the plaintiff] was treated differently from other similarly-situated employees who violated work rules of comparable seriousness.

Id. (citations omitted).

Regardless of which theory of pretext the plaintiff asserts, “our role isn’t to ask whether the employer’s decision was ‘wise, fair or correct, but whether [it] honestly believed [the legitimate, nondiscriminatory] reasons [it gave for its conduct] and acted in good faith on those beliefs.’ ” Johnson, 594 F.3d at 1211 (alterations in original) (quoting Rivera v. City & Cty. of Denver, 365 F.3d 912, 925 (10th Cir. 2004)). “Evidence that the employer should not have made the termination decision — for example, that the employer was mistaken or used poor business judgment — is not sufficient to show that the employer’s explanation is unworthy of credibility.” Simmons v. Sykes Enters., Inc., 647 F.3d 943, 948 (10th Cir. 2011) (quoting Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1169-70 (10th Cir. 2007)). “[O]ur role is to prevent intentional discriminatory ... practices, not to act as a ‘super personnel department,’ second guessing employers’ honestly held (even if erroneous) business judgments.” Young v. Dillon Cos., Inc., 468 F.3d 1243, 1250 (10th Cir. 2006); cf. Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1330 (10th Cir. 1999) (same), abrogated in part on other grounds by Eisenhour v. Weber Cty., 744 F.3d 1220, 1227 (10th Cir. 2014). The determinative question is whether “a reasonable factfinder could rationally find [the employer’s rationale] unworthy of credence and hence infer that the employer did not act for the asserted nondiscriminatory reasons.” Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1196 (10th Cir. 2011) (quoting Swackhammer, 493 F.3d at 1167).

IV

Ms. DeWitt first contends that the district court erred in granting summary judgment in favor of SWBTC on her ADAAA termination claim. According to Ms. DeWitt, SWBTC terminated her because of her disability in violation of the ADAAA. Because we agree with the district court that SWBTC was entitled to judgment as a matter of law on this claim, we affirm.

A

The ADAAA prohibits employers from discriminating against “a qualified individual on the basis of disability in regard to ... discharge of employees.” 42 U.S.C. § 12112(a). To make out a prima facie case for discrimination under the ADAAA, Ms. DeWitt must show that she “(1) is a disabled person as defined by the ADA; (2) is qualified, with or without reasonable accommodation, to perform the essential functions of the job held or desired; and (3) suffered discrimination by an employer or prospective employer because of that disability.” E.E.O.C. v. C.R. Eng., Inc., 644 F.3d 1028, 1037-38 (10th Cir. 2011) (quoting Justice v. Crown Cork & Seal Co., 527 F.3d 1080, 1086 (10th Cir. 2008)). “In order to demonstrate ‘discrimination,’ a plaintiff generally must show that he has suffered. an ‘adverse employment action because of the disability.’” Id. at 1038 (quoting Mathews v. Denver Post, 263 F.3d 1164,1167 (10th Cir. 2001)).

“If plaintiff establishes a prima facie case,” under the McDonnell Douglas framework, “the burden shifts to the defendant to offer a legitimate nondiscriminatory reason for its employment decision. If defendant articulates a nondiscriminatory 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 pretex-tual.” Davidson v. Am. Online, Inc., 337 F.3d 1179, 1189 (10th Cir. 2003) (citation omitted). We now apply this rubric to Ms. DeWitt’s ADAAA termination claim.

B

We conclude that Ms. DeWitt’s ADAAA termination claim fails as a matter of law. In reaching this conclusion, we assume without deciding that Ms. DeWitt has established the prima facie case for her ADAAA termination claim. And SWBTC has easily satisfied its burden under the second prong of the McDonnell Douglas framework — that is, SWBTC has articulated a nondiscriminatory reason for terminating Ms. DeWitt’s employment — by pointing to evidence that Ms. DeWitt hung up on at least two customers while subject to a Last Chance Agreement. Specifically, Ms.. Basketb-McEnany testified, to her belief that Ms. DeWitt intentionally dropped the calls; consequently, she decided to ter-mínate Ms. DeWitt’s employment. Therefore, Ms. DeWitt’s claim must stand or fall on her argument that the dropped calls were merely a pretextual reason for SWBTC to terminate her employment. Ms. DeWitt’s claim fails because she has not carried her burden on summary judgment as to the pretext component of the McDonnell Douglas framework — that is, Ms. DeWitt identifies no evidence from which a reasonable jury could rationally find that her disability, not the dropped calls, motivated her termination.

1

Ms. DeWitt focuses her pretext argument on discrediting Ms. Baskett-McEna-ny’s belief that Ms. DeWitt intentionally hung up on at least two customers, but fails to identify any evidence that casts doubt on this belief.

At the outset, Ms. Baskett-McEnany’s belief has an objective basis in the record. Following the January 2010 cramming incident, Ms. Baskett-McEnany and Mr. Rivera decided to put Ms. DeWitt on a Last Chance Agreement. The Last Chance Agreement authorized SWBTC to terminate Ms, DeWitt’s employment if she violated the Code of Business Conduct. Only about two months later, in March 2010, Ms. DeWitt hung up on at least two customers, thereby violating the Code of Business Conduct’s requirement that customer service representatives treat customers “in a professional, courteous manner.” Aplt.’s App. at 252 (AT&T’s Code of Business Conduct, filed Apr. 29, 2014). Aware of the Last Chance Agreement, Ms. Baskett-McEnany conducted a Day in Court so that Ms. DeWitt could share her side of the story, and thereafter concluded that Ms. DeWitt had dropped the calls intentionally. Based on this conclusion, Ms. Baskett-McEnany, in consultation with Mr. Rivera, decided to terminate Ms. De-Witt’s employment.

In reaching her conclusion that Ms. De-Witt intentionally dropped the calls, Ms. Baskett-McEnany considered multiple factors. First, she considered how “difficult [it is] to accidentally hang up on a customer.” Id. at 300. Terminating a phone call is a two-step process, she testified, requiring two separate clicks of the mouse; that is, hanging up on customers required “discrete decisions to do that.” Id. Second, Ms. Baskett-McEnany considered that Ms. DeWitt operated successfully the rest of the day and never reported that she was not feeling well. She also interacted with a co-worker on an instant messaging system immediately prior to the first dropped call. Third, Ms. DeWitt did not go into auxiliary mode or take a break from accepting calls, which she was permitted to do if she became ill. Fourth, Ms. DeWitt was in close proximity to other customer service representatives when the dropped calls occurred yet Ms. DeWitt identified no witnesses that would have observed her disorientation. Fifth and finally, Ms. Baskett-McEn-any considered that although she believed Ms. DeWitt to be an honest person, Ms. DeWitt’s Last Chance status put her job in jeopardy and could have motivated her to invent a disability-related cause for her misconduct. Ms. Baskett-McEnany weighed these facts against Ms. DeWitt’s claim that her disability caused her to drop the calls, and developed the belief that Ms. DeWitt intentionally dropped the calls. Accordingly, Ms. Baskett-McEnany, in consultation with Mr. Rivera, decided to terminate Ms. DeWitt’s employment.

Ms. DeWitt now complains that this detailed rationale was mere pretext for discrimination, but points to no evidence that belies Ms. Baskett-McEnany’s belief that Ms. DeWitt intentionally hung up on customers or that contradicts Ms. Baskett-McEnany’s and Mr. Rivera’s proffered, non-discriminatory reason for terminating Ms. DeWitt. In other words, Ms. DeWitt supports her pretext complaint with “[m]ere conjecture.” Morgan, 108 F.3d at 1323. Moreover, it bears underscoring that, even though the strong factual foundation for Ms. Baskett-McEnany’s belief works to severely undercut Ms. DeWitt’s pretext argument, it ultimately is immaterial whether Ms. Baskett-McEnany’s belief was actually correct — viz., her belief that Ms. DeWitt’s hang-ups were intentional; what matters is that Ms. Baskett-McEnany “honestly” held that belief and “acted [on it] in good faith.” Johnson, 594 F.3d at 1211. Accordingly, Ms. DeWitt’s ADAAA termination claim must fail.

a

Ms. DeWitt first attempts to show pretext by pointing to evidence of the subjective beliefs of individuals who played no role in the decision to terminate Ms. De-Witt’s employment. None of this evidence, however, bears on the credibility of Ms. Baskett-McEnany’s stated reasons for terminating Ms. DeWitt’s employment; therefore, it fails to show pretext.

For instance, Ms. DeWitt points to evidence of her own belief that symptoms related to her diabetes caused her to disconnect the phone calls. But Ms. DeWitt’s opinion on this matter has no bearing on whether Ms. Baskett-McEnany honestly believed that Ms. DeWitt dropped the customer calls intentionally. Ms. DeWitt goes further, arguing that the conflict between her view and Ms. Baskett-McEnan/s raises a jury question as to why Ms. De-Witt disconnected the customer calls. Ms. DeWitt’s argument misapprehends our inquiry here: our inquiry is not why Ms. DeWitt disconnected the customer calls. Nor is it whether Ms. Baskett-McEnany’s view that Ms. DeWitt intentionally hung up on customers “was wise, fair or correct.” Id. (quoting Rivera, 365 F.3d at 925). Our inquiry under McDonnell Douglas is limited to whether Ms. Baskett-McEnany honestly believed her stated reason for terminating Ms. DeWitt’s employment and acted in good faith on that belief.

Ms. DeWitt again misses the mark when she points to evidence of Ms. Kloxin’s animus to show pretext. Ms. Kloxin’s animus for Ms. DeWitt is undisputed. Ms. Kloxin responded to knowledge of Ms. DeWitt’s dropped calls by “doing a dance” and stating, “I finally got that bitch.” Aplt.’s App at 458. And when Mr. Rivera told Ms. Kloxin that her behavior was inappropriate, she responded, “You don’t understand. I’ve been chasing after her long before, since you got here.” Id. But Ms. Kloxin’s subjective beliefs are irrelevant because she was not a decision-maker here; Ms. Baskett-McEnany made the decision to terminate Ms. DeWitt’s employment, in consultation with Mr. Rivera.

Ms. DeWitt makes no claim that Ms. Kloxin’s animus influenced Ms. Baskett-McEnany’s termination decision (or for that matter Mr. Rivera’s advice to her). Ms. DeWitt notes that Ms. Kloxin was “the manager responsible for keeping track of employees’ medical and disability leave” and “for drafting the termination paperwork for [Ms.] DeWitt.” Aplt.’s Opening Br. at 36. But Ms. DeWitt does not explain how Ms. Kloxin’s accounting and drafting responsibilities influenced Ms. Baskett-McEnany’s decision. Moreover, there is no evidence that Ms. Baskett-McEnany even knew of Ms. Kloxin’s animus. (Furthermore, the record affirmatively shows that her advisor, Mr. Rivera, disapproved of Ms. Kloxin’s display of animus toward Ms. DeWitt in the workplace.) In sum, Ms. DeWitt fails to show how evidence of Ms. Kloxin’s animus undermines SWBTC’s stated reason for terminating Ms. DeWitt’s employment.

b

In contravention of Tenth Circuit precedent, Ms. DeWitt requests that we decline to apply the honest-belief doctrine. She argues that the honest-belief doctrine eviscerates the third prong of the McDonnell Douglas framework (i.e., the pretext prong) by “short circuiting] [a plaintiffs] ability to show that [its employer’s] actions were motived by or resulted in illegal discrimination.” Id. at 26. It goes without saying that we are not situated to deviate from our settled precedent that has adopted the honest-belief rule. See, e.g., Medley v. Polk Co., 260 F.3d 1202, 1208 (10th Cir. 2001) (“[W]hen an employee is discharged because of an employer’s honest mistake, federal anti-discrimination laws offer no protection.” (quoting Kariotis v. Navistar Int’l Trans. Corp., 131 F.3d 672, 680 (7th Cir. 1997))). In any event, on the merits, we disagree with Ms. DeWitt’s criticism.

i

Ms. DeWitt’s argument reflects a misunderstanding of the McDonnell Douglas framework. The pretext prong of that framework permits a plaintiff employee to raise a triable inference that the stated reasons for the adverse action underlying an employer’s ostensibly honest belief are a pretext for discrimination. Consequently, this prong effectively allows an employee to demonstrate a triable inference that the employer’s ostensibly honest belief in its stated reasons is not actually honestly held.

In this regard, once an employer has posited a legitimate, non-discriminatory reason for terminating an employee, the employee may access many evidentiary tools to expose its employer’s stated reason as pretext. See Kendrick, 220 F.3d at 1230. For instance, an employee may raise a triable inference of pretext by showing “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in the employer’s stated reason for terminating the employee. See Macon v. United Parcel Serv., Inc., 743 F.3d 708, 714 (10th Cir. 2014) (quoting Morgan, 108 F.3d at 1323). Moreover, showing disparate treatment — by demonstrating that the employer treated employees similarly situated to the plaintiff employee differently (i.e., more favorably) — is a particularly potent instrument to discredit an employer’s allegedly legitimate reasons. See Kendrick, 220 F.3d at 1230. These are just two of many tools plaintiff employees may use to raise a triable inference of pretext and thereby undercut an employer’s asserted honest belief.

Thus, the honest-belief doctrine does not eviscerate the third prong (i.e., pretext) of the McDonnell Douglas framework. Far from it. That prong contemplates that an employer will have professed honest belief in ostensibly legitimate, non-discriminatory reasons for its adverse action; but it establishes the context in which an employee may test the plausibility or coherency of the reasons supposedly underlying that honest belief with the aim of demonstrating that employer’s belief actually may not be honestly held.

ii

Ms. DeWitt cites Stalter v. Wal-Mart Stores, Inc., 195 F.3d 285 (7th Cir. 1999) as “[a]n example of a court refusing to apply the Honest Belief doctrine in the context of a workplace rule violation.” Aplt.’s Opening Br. at 29. Putting aside the obvious point that Stalter — a decision from a sister circuit — is not binding on us, Ms. DeWitt’s characterization of its holding is mistaken. Stalter actually makes clear that under McDonnell Douglas, “[w]e look not at the wisdom of the employer’s decision, but rather at the genuineness of the employer’s motives.” 195 F.3d at 289 (emphasis added). In other words, far from rejecting it, the Stalter court focused its analysis on whether the employer’s belief was honest (i.e., genuine).

Indeed, Stalter undermines — rather than supports — Ms. DeWitt’s contention that the honest-belief rule effectively guts the pretext prong of McDonnell Douglas because the Seventh Circuit concluded that the Stalter plaintiff had established a triable issue of pretext regarding his race-based discrimination claim despite the employer’s contention that the plaintiffs employment was terminated under a “sincere application” of its anti-theft policy. Stalter, 195 F.3d 285. More specifically, the employer, Wal-Mart, came forward with its reason for terminating the plaintiff — that is, theft, which amounted to “gross misconduct” — and the plaintiff responded with evidence of pretext by showing that (1) the severity of the punishment (i.e., termination) in relation to the offense — that is, “[e]ating a handful of [chips] from an open bag on a countertop in the lunchroom”— was so excessive that a reasonable jury could discredit the employer’s “sincere” belief and (2) “a Caucasian employee who also committed gross misconduct,” and was thus similarly situated, was not terminated. Id. at 287, 290-91. This evidence led the Seventh Circuit to rule against the employer, to wit: “Because Stalter has raised genuine issues of material fact regarding whether that explanation is pretext for the true motivation for Stalter's termination, we reverse and remand for a trial on the disputed issues.” Id. at 291-92.

Stalter well illustrates that, at bottom, Ms. DeWitt’s problem is not the honest-belief rule, but rather her inability to marshal any evidence to undercut its operation. For example, despite Ms. DeWitt’s suggestion that, like the Stalter plaintiff, she has suffered “excessive punishment,” Aplt.’s Opening Br. at 30, that hardly squares with the record. From SWBTC’s perspective, dropping customer calls is a serious and terminable offense in violation of its Code of Business Conduct. Ordinarily, it is not our role to second-guess an employer’s assessment of the gravity of workplace misconduct. See, e.g., Young, 468 F.3d at 1250 (“[0]ur role is to prevent intentional discriminatory ... practices, not to act as a ‘super personnel department,’ second guessing employers’ honestly held (even if erroneous) business judgments.”). Moreover, especially in light of Ms. DeWitt’s position as a customer service representative, responsible for handling customer calls, it certainly cannot be said here — as the Seventh Circuit could in Stalter — that the employer’s assessment “does not pass the straight-face test” or that SWBTC’s response in terminating Ms. DeWitt “strikes us as swatting a fly with a sledge hammer.” Stalter, 195 F.3d at 290. Furthermore, unlike the Stalter plaintiff, Ms. DeWitt has shown no evidence of disparate treatment — viz., similarly situated employees outside of the relevant protected groups were treated more favorably than she was. In sum, Ms. De-Witt’s reliance on Stalter is, to say the least, misplaced.

Ms. DeWitt next presumes that this court will adopt the Sixth Circuit’s variation of the honest-belief doctrine, which requires that an employer “be able to establish its reasonable reliance on the particularized facts that were before it at the time the decision was made.” Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998). Because this rule conflicts with our precedent, we will not endorse it here.

Smith turns the third prong of the McDonnell Douglas framework on its head. It places the burden on the employer to show that it reasonably relied on particularized facts in the record in forming its honest belief; however, in construing the rubric of McDonnell Douglas, we have recognized no such employer burden. Rather, we have consistently held that, after an employer asserts a facially legitimate honest belief, the burden shifts to the plaintiff to show that the employer’s proffered honest belief is in fact nothing more than a pretext for discrimination. An employer certainly can fortify its litigation position by identifying the particularized facts on which it reasonably relied in forming its honest belief, but we do not read McDonnell Douglas as requiring the employer to do so.

Ms. DeWitt also cites Smith to support her argument that, even if Ms. Baskett-McEnany’s belief that she intentionally hung up on customers was sincere, a jury could still reasonably conclude that “such a belief was influenced by ignorance or stereotypes,” and thus reflects discrimination. Aplt.’s Opening Br. at 31, Specifically, Ms. DeWitt points to Ms. Baskett-McEnany’s stated inability to “reconcile why [Ms.] De-Witt could remember with explicit detail events throughout the day of the dropped calls, but could not remember” the dropped calls themselves. Id. at 32. Ms. DeWitt explains that “mental confusion during a low blood sugar episode is not inconsistent with being able to remember events before and after the low blood sugar episode when the blood sugar levels were higher and allowed for proper brain function.” Id. Ms. DeWitt further argues that “[a] simple internet search of Type I diabetes and ‘low blood sugar’ leads to the American Diabetes Association website,” which offers basic information about diabetes. Id. at 33. This argument is misguided.

Ms. DeWitt’s ability to function before and after the dropped calls was only one factor Ms. Baskett-McEnany took into consideration. As noted supra, Ms. Bask-ett-McEnany also considered that “there are specific discrete steps that an agent has to take to acknowledge a call and to then hang up on a customer” which “require[ ] a level of coherence,” Aplt.’s App. at 311, and that Ms. DeWitt continued to take calls after the dropped calls and at no point “took herself off the desk because she wasn’t feeling well ... which is what a rep does when they need to take a break or they can’t take calls,” id. at 313. In any event, Ms. Baskett-McEnany weighed the facts before her and concluded that Ms. DeWitt had intentionally hung up on the customers; in other words, she concluded the hangups were not caused by Ms. De-Witt’s diabetes. And, as we have noted, whether Ms. Baskett-McEnany’s conclusion was right or wrong — or the product of ignorance, for that matter — standing alone, is immaterial. Ms. DeWitt has not identified evidence upon which a jury could reasonably conclude that Ms. Baskett-McEnany’s belief that Ms. DeWitt intentionally dropped the calls was the product of discriminatory intent.

c

Ms. DeWitt again falls short of the summary judgment hurdle when she asserts that the disputed propriety of putting Ms. DeWitt on a Last Chance Agreement raises a jury question as to pretext. Ms. DeWitt points to evidence that Ms. Baskett-McEnany told the human re-sources manager that Ms. DeWitt unintentionally crammed the customer’s account and that “it could have been an option not to discipline at all if she had believed [Ms.] DeWitt” acted unintentionally. Aplt’s App. at 383 (emphasis added). This evidence is not material because the ADAAA does not require that employers choose the most lenient course of discipline, or in this case, no discipline at all. Again, “our role isn’t to ask whether” SWBTC “was wise, fair or correct,” in putting Ms. DeWitt on a Last Chance Agreement. See Johnson, 594 F.3d at 1211. The SWBTC Code of Business Conduct makes cramming a customer account a terminable offense — irrespective of whether the cramming was intentional. That Ms. Baskett-McEnany had the option to impose a less severe disciplinary measure is irrelevant. What matters is whether Ms. Baskett-McEnany’s intent in imposing the Last Chance Agreement was discriminatory, and Ms. DeWitt identifies no evidence in,this regard.

d

Finally, Ms. DeWitt argues that Ms. Baskett-McEnany’s failure to conduct a fair investigation of Ms. DeWitt’s dropped calls raises an inference of pretext. “A ‘failure to conduct what appeared to be a fair investigation of the violation that purportedly prompted adverse action may support an inference of pretext.” Smothers, 740 F.3d at 542 (quoting Trujillo v. PacifiCorp, 524 F.3d 1149, 1160 (10th Cir. 2008)). But an employer may ordinarily “defeat the inference” of pretext stemming from an allegedly unfair investigation by “simply asking an employee for his version of events.” E.E.O.C. v. BCI Coca-Cola Bottling Co. of L.A., 450 F.3d 476, 488 (10th Cir. 2006); see also Kendrick, 220 F.3d at 1231 (declining to find an inadequate investigation where “[i]mportantly, in the course of his investigation [the decision-maker] asked the [plaintiff-employee] to give his version of the [events]”).

As relevant here, Ms. DeWitt’s unfair-investigation argument is overcome by the simple fact that Ms. Baskett-McEnany asked Ms. DeWitt for her version of events at the March 10 Day in Court. Ms. DeWitt cites only Smothers to support her claim and Smothers starkly contrasts with the situation here. In Smothers, an employee was terminated by his employer for his involvement in a quarrel with another employee. See Smothers, 740 F.3d at 533. The employee brought ADA discrimination and FMLA retaliation claims against the employer and, after the district court granted summary judgment in the employer’s favor, we reversed. Id. In making the termination decision, the decision-makers never asked the plaintiff-employee for his side of the story, but instead relied entirely on information provided by biased subordinates. Id. at 542. We thus concluded that a reasonable jury could find the employer’s investigation unfair and inadequate, and thereby infer that the employer’s stated belief was mere pretext. Id. at 543.

Here, Ms. DeWitt received a Day in Court, at which Ms. Baskett-McEnany asked Ms. DeWitt to “tell [her] anything” that Ms. DeWitt wanted Ms. Baskett-McEnany to know about the dropped calls. Aplt’s App. at 326 (Day in Court Mins., dated Mar. 10, 2010). Ms. DeWitt explained that she suffered from low blood sugar on March 3, that she did not remember taking the dropped calls, and that symptoms related to her diabetes caused her to drop the calls. That Ms. Baskett-McEnany pei’mitted Ms. DeWitt to explain her side of the story defeats any inference of an unfair investigation. Ms. Baskett-McEnany simply did not believe her.

More fundamentally, Ms. DeWitt identifies no evidence that suggests SWBTC’s investigation was unfair. In this regard, Ms. DeWitt argues that Ms. Baskett-McEnany knew that Ms. DeWitt was locked out of her computer on March 3 but “took no steps to investigate whether [disability-related] reasons for getting locked out of the computer were what actually happened to [Ms.] DeWitt.” Aplt’s Opening Br. at 38. This assertion fails to establish an inference of pretext. Ms. DeWitt never discloses what additional investigative steps she believes Ms. Baskett-McEn-any should have taken to determine the cause of the lock out. Nor, importantly, does she explain why Mr. Baskett-McEna-ny’s failure to conduct further steps rendered the investigation unfair. Our focus here is not on whether SWBTC’s investigation was optimal (i.e., text-book best practices); rather, it is on whether its investigation was fair. Ms. DeWitt offers no evidence to establish that it was not.

In sum, Ms. DeWitt did not point to evidence that would call into question the employer’s legitimate reason for terminating her employment. Her claim cannot survive the pretext inquiry of McDonnell Douglas.

Y

Ms. DeWitt next contends that the district court erred in granting summary judgment in favor of SWBTC on her ADAAA accommodation claim. Specifically, Ms. DeWitt argues that SWBTC discriminated against her by failing to accommodate her disability by excusing the disconnected calls that she claims were caused by her disability. Because we discern no reversible error in this aspect of the district court’s ruling, we affirm.

A

The ADAAA prohibits an employer from “unlawfully ‘discriminat[ing]’ against an employee by failing to ‘mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an ... employee.’ ” C.R. Eng., Inc., 644 F.3d at 1048 (second alteration in original) (quoting 42 U.S.C. § 12112(b)(5)(A)). “The statute thus establishes a cause of action for disabled employees whose employers fail to reasonably accommodate them.” Id. (quoting Selenke, 248 F.3d at 1261).

The ADAAA defines “reasonable accommodation” to include:

(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

42 U.S.C. § 12111(9)(A)-(B); accord 29 C.F.R. § 1630.2(0).

“To facilitate the reasonable accommodation, ‘[t]he federal regulations implementing the ADA envision an interactive process that requires participation by both parties.’ ” Bartee v. Michelin N. Am., Inc., 374 F.3d 906, 916 (10th Cir. 2004) (alteration in original) (quoting Templeton v. Neodata Servs., Inc., 162 F.3d 617, 619 (10th Cir. 1998)). “However, before an employer’s duty to provide reasonable accommodations — or even to participate in the ‘interactive process’ — is triggered under the ADA, the employee must make an adequate request, thereby putting the employer on notice.” C.R. Eng., Inc., 644 F.3d at 1049.

B

Ms. DeWitt’s accommodation claim fails because she did not request a reasonable accommodation to address concerns regarding the possibility of dropped calls; instead, she requested retroactive leniency for her misconduct. Specifically, Ms. DeWitt requested that SWBTC overlook that she hung up on at least two customers while on a Last Chance Agreement. Such retroactive leniency is not a “reasonable accommodation” as defined by the ADAAA.

1

The ADAAA does not require employers to reasonably accommodate an employee’s disability by overlooking past misconduct — irrespective of whether the misconduct resulted from the employee’s disability. The Equal Employment Opportunity Commission’s (“EEOC”) Enforcement Guidance makes clear that the requirement to provide reasonable accommodations under the ADAAA is “always prospective,” and that “an employer is not required to excuse past misconduct even if it is the result of the individual’s disability.” U.S. Equal OppoRtüNity Employment CoMM’N, ENFORCEMENT GüIDANCE: REASONABLE Accommodation and Undue Hardship Under the Americans with Disabilities Act at No. 36; see also id. at No. 35 (“An employer never has to excuse a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity.”). A panel of this court in an unpublished decision has similarly held that “excusing workplace misconduct to provide a fresh start/second chance to an employee whose disability could be offered as an after-the-fact excuse is not a required accommodation under the ADA.” Davila v. Quest Corp., Inc., 113 FedAppx. 849, 854 (10th Cir. 2004) (emphasis added).

Several of our sister circuits have reached the same conclusion. See, e.g., McElwee v. Cty. of Orange, 700 F.3d 635, 641 (2d Cir. 2012) (“A requested accommodation that simply excuses past misconduct is unreasonable as a matter of law.”); Hill v. Kan. City Area Transp. Auth., 181 F.3d 891, 894 (8th Cir. 1999) (“[Plaintiff] did not request a disability accommodation, she asked for a second chance to better control her treatable medical condition. That is not a cause of action under the ADA.”); Burch v. Coca-Cola Co., 119 F.3d 305, 319 n.14 (5th Cir. 1997) (“[A] ‘second chance’ or a plea for grace is not an accommodation as contemplated by the ADA.”); Siefken v. Vill. of Arlington Heights, 65 F.3d 664, 666-67 (7th Cir. 1995) (“[Plaintiff] is not asking for an accommodation; he is not asking [his employer] to change anything. He is asking for another chance.... But the ADA does not require this.”).

Bolstered by the plain language of the EEOC guidance and the persuasive conclusions reached by our panel in Davila and in our sister circuits, we are confident that the ADAAA does not require employers to accommodate disabled employees by overlooking a past violation of a workplace rule, regardless of whether that violation was caused by the employee’s disability. Accordingly, SWBTC was not required to accommodate Ms. DeWitt by overlooking her March 2010 dropped calls while she was on a Last Chance Agreement, and Ms. DeWitt’s ADAAA accommodation claim must fail.

2

In its amicus curiae brief, the EEOC argues that Ms. DeWitt’s disconnected calls constituted a violation of performance standards, not a conduct rule. According to the EEOC, while “[t]he basic rule that an employer is not required to ‘excuse’ past poor performance still holds with respect to performance standards.... an employer is [not] categorically free to terminate any and all disabled employees at the first instance of any and all disability-related performance deficiencies.” EEOC Br. at 32 (emphasis added). We reject the EEOC’s argument.

At the outset, we are convinced that Ms. DeWitt’s misconduct — hanging up on at least two customers — constitutes a violation of a conduct rule. “The ADA generally gives employers wide latitude to develop and enforce conduct rules,” so long as the “conduct rule [is] job-related and consistent with business necessity....” EEOC Fact Sheet, The AmeRioans with Disabilities Act: Applying PERFORMANCE and Conduct Standards to Employees with Disabilities (“Fact Sheet”) § 111(B)(9). The Fact Sheet goes on to include a non-exclusive list of “[c]ertain conduct standards that exist in all workplaces and cover all types of jobs” that “always meet this standard,” including a requirement that employees “show respect for, and deal appropriately with, clients and customers.” Id.

In light of this EEOC guidance, the SWBTC Code of Business Conduct’s requirement that employees treat customers “in a professional, courteous manner,” Aplt.’s App. at 252, is undoubtedly a conduct rule, and it cannot seriously be argued in the customer-service setting, where Ms. DeWitt worked, that such a rule is not job-related and consistent with business necessity. And hanging up on customers is certainly a violation of this conduct rule. Ms. DeWitt therefore is nothing less than a repeat violator, having hung up on at least two customers. Therefore, the ADAAA does not require SWBTC to ignore or overlook Ms. DeWitt’s dropped calls.

Even if we were to adopt the EEOC’s characterization of Ms. DeWitt’s dropped calls as a violation of performance standards (which we do not), SWBTC still was not obligated to overlook Ms. DeWitt’s shortcomings. Performance standards relate to the “quantitative and qualitative requirements for performance'of essential functions” of a particular job. Fact Sheet § 111(A)(1). And the ADAAA permits “an employer [to] apply the same [performance standards] to an employee with a disability that it applies to employees without disabilities.” Id. Therefore, so long as SWBTC would require non-disabled employees under a Last Chance Agreement to refrain from dropping calls — and this cannot be disputed — it could require Ms. DeWitt to refrain from doing so. Moreover,, given the centrality of customer service to Ms. DeWitt’s job, it could not be plausibly argued that this ostensible performance standard was a “marginal” part of her duties, such that SWBTC was required to permit Ms, DeWitt to sidestep it. Id. Example 1 & § 111(A)(6).

The EEOC further argues that the timing of Ms. DeWitt’s request for an accommodation is irrelevant because “[t]he ADA does not compel employees to ask for accommodations at a certain time.” See id. § 111(A)(5). The Fact Sheet explains that an employee “may ask for [a] reasonable accommodation before or after being told of performance problems” because “[s]ometimes, an employee may not know or be willing to acknowledge that there is a problem requiring accommodation until the employer points out deficiencies in performance.” Id. Critically, however, the Fact Sheet indicates that nevertheless “the timing of a request for reasonable accommodation is important,” id. and (at the very least) it strongly suggests that an employer is not obliged to apply the brakes on an ongoing disciplinary process based on past performance deficiencies simply because an employee requests an accommodation, see id. Example 9 (“The employer may refuse the request for reasonable accommodation and proceed with the termination because an employer is not required to excuse performance problems that occurred prior to the accommodation request.... This employee waited too long to request reasonable accommodation.”). Consequently, .even under the EEOC’s own Fact Sheet, SWBTC would not have been obligated to stay its disciplinary hand — based on Ms. DeWitt’s dropped calls under a Last Chance Agreement— simply because she purported to request, at the eleventh hour, an accommodation.

In sum, because a denied request for retroactive leniency cannot support an accommodation claim, and nothing in the EEOC’s policy guidance or other authorities barred SWBTC from disciplining Ms. DeWitt for her conduct, Ms. DeWitt’s accommodation claim must fail. We thus affirm the district court’s grant of summary judgment to SWBTC on Ms. DeWitt’s ADAAA accommodation claim.

VI

Finally, Ms. DeWitt argues that the district court erred in granting summary judgment in favor of SWBTC on her FMLA retaliation claim. Specifically, Ms. DeWitt argues that SWBTC terminated her employment because she took FMLA leave. Because we conclude that Ms. De-Witt has not raised a triable issue of fact on the pretext component of her retaliation claim, we affirm this final aspect of the district court’s ruling.

A

“The FMLA entitles qualifying employees to take up to twelve weeks of unpaid leave, without fear of termination ... [for] ‘a serious health condition.’ ” Smothers, 740 F.3d at 539 (alteration in original) (quoting Wysong v. Dow Chem. Co., 503 F.3d 441, 446 (6th Cir. 2007)); see 29 U.S.C. § 2612(a)(1)(D) (“[A]n eligible employee shall be entitled to [FMLA leave] [b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee.”). The FMLA further provides that an employer may not “discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by [the FMLA].” 29 U.S.C. § 2615(a)(2). “We have construed this provision of the FMLA as creating a retaliation theory of recovery.” Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 1004 (10th Cir. 2011) (citing Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1170 (10th Cir. 2006)). Therefore, “[i]t is unlawful for an employer to retaliate against an employee for taking FMLA leave.” Smothers, 740 F.3d at 539-40.

As with Ms. DeWitt’s ADAAA termination claim, “[r]etaliation claims under the FMLA are subject to the burden-shifting analysis of McDonnell Douglas.” Metzler, 464 F.3d at 1170; see also Debord v. Mercy Health Sys. of Kan., 737 F.3d 642, 655 (10th Cir. 2013) (noting that “[w]here, as here, the plaintiff does not have direct evidence of retaliation, we follow the three-step framework from McDonnell Douglas”). “Under this analysis, the plaintiff bears the initial burden of establishing a prima facie case of retaliation,” by proving that “(1) she engaged in a protected activity; (2) [the defendant] took an action that a reasonable employee would have found materially adverse; and (3) there exists a causal connection between the protected activity and the adverse action.” Metzler, 464 F.3d at 1170-71 (footnote omitted); see also Bertsch v. Overstock.com, 684 F.3d 1023, 1028 (10th Cir. 2012) (“A prima facie retaliation case is made if the plaintiff shows that she engaged in protected opposition to discrimination, and, as a result, suffered materially adverse action....” (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006))). Once the plaintiff successfully asserts a prima facie retaliation case, the burden shifts to the defendant to “offer a legitimate, non-retaliatory reason for the employment action. The plaintiff then bears the ultimate burden of demonstrating that the defendant’s proffered reason is pretextual.” Metzler, 464 F.3d at 1170 (citation omitted).

B

Ms. DeWitt easily satisfies the first two requirements of her prima facie case for her FMLA retaliation claim: (1) she “engaged in a protected activity by taking FMLA leave” and (2) “any reasonable employee would have found termination materially adverse.” See id. at 1171. Assuming, arguendo, that Ms. DeWitt also satisfies the third and final element of the prima facie case for FMLA retaliation— that is, showing a causal connection between the protected activity and the adverse action — we turn to the other components of the McDonnell Douglas framework. As with Ms. DeWitt’s ADAAA termination claim, SWBTC has carried its- burden to show a legitimate, non-retaliatory reason for terminating Ms. DeWitt’s employment: that is, Ms. DeWitt intentionally hung up on at least two customers, a violation of the Code of Business Conduct, while subject to a Last Chance Agreement. The burden thus shifts to Ms. DeWitt to identify evidence upon which a rational jury could reasonably find that SWBTC’s stated reason for terminating Ms. DeWitt’s employment was mere pretext for FMLA retaliation. Ms. DeWitt has not carried her burden.

1

Ms. DeWitt again relies on the animus of Ms. Kloxin to support her pretext argument. .But, again, Ms. Kloxin was not a decision-maker with regard to Ms. DeWitt’s termination; the decision to terminate Ms. DeWitt’s employment was made by Ms. Basketfc-McEnany, in consultation with Mr. Rivera. Ms. DeWitt points to no evidence that Ms. Basketfc-McEnany (or even Mr. Rivera) shared Ms. Kloxin’s animus for Ms. DeWitt, or that she was influenced by Ms. Kloxin’s animus in making the decision to terminate Ms. DeWitt. In particular, as to Ms. Basketfc-McEnany, there is no evidence that she had any knowledge of Ms. Kloxin’s animus for Ms. DeWitt, let alone relied on it to terminate Ms. DeWitt’s employment. Therefore, evidence of Ms. Kloxin’s animus toward Ms. DeWitt does not raise a jury question as to whether SWBTC fired Ms. DeWitt because she took FMLA leave.

2

Ms. DeWitt next points to Ms. Garcia’s testimony to show pretext. Specifically, Ms. Garcia stated that SWBTC employees that used FMLA leave were “targeted as employees that [SWBTC] wanted to terminate” and that SWBTC “looked for other reasons to terminate that employee.” Aplt.’s App. at 440. Additionally, Ms. Garcia specifically identified Ms. DeWitt as an employee on the “target list” for having used FMLA leave. Id. at 441.

Ms. Garcia’s statements amount to no more than speculation as to SWBTC’s motive for terminating Ms. DeWitt’s employment, and thus provide no support for Ms. DeWitt at the summary-judgment stage. First, Ms. Garcia played no part in SWBTC’s decision to terminate Ms. De-Witt’s employment. In fact, Ms. Garcia’s employment with SWBTC ended more than a year before Ms. DeWitt crammed a customer’s account in January 2010; thus, Ms. Garcia has no first-hand knowledge of the circumstances surrounding Ms. De-Witt’s termination. Second, Ms. Garcia never identified Ms. Baskett-McEnany as being among the managers in attendance at the meetings where FMLA leave was discussed. Therefore, Ms. Garcia’s testimony fails to raise a jury question as to whether Ms. Baskett-McEnany’s decision to terminate Ms. DeWitt was actually retaliation for Ms. DeWitt’s use of FMLA leave.

In sum, even assuming that Ms. DeWitt has made a prima facie FMLA retaliation case, we conclude that SWBTC is entitled to summary judgment because (1) it advanced a legitimate, non-retaliatory reason for taking adverse employment action against Ms. DeWitt — i.e., Ms. DeWitt’s hanging up on customers while on a Last Chance Agreement, and (2) Ms. DeWitt failed to demonstrate that SWBTC’s stated reason for its disciplinary action was pretextual. Consequently, we affirm this aspect of the district court’s ruling.

VII

For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment in favor of SWBTC on all claims.

      . The AD AAA's amendments to the ADA went into effect on January 1, 2009. ADAAA § 8, 122 Stat. at 3559. The events that form the basis for Ms. DeWitt's disability-related claims occurred after this date; therefore, the ADAAA is technically applicable here. In recognition of this fact, we refer to her disability-related claims herein as claims alleging violations of the ADAAA. See Adair v. City of Muskogee, 823 F.3d 1297, 1304 (10th Cir. 2016) (referring to the ADAAA as “the governing version of the ADA” and analyzing the plaintiff's claims under the ADAAA’s rubric); Hawkins v. Schwan's Home Serv., Inc., 778 F.3d 877, 879 n. 1 (10th Cir. 2015) (adopting this approach and specifically acknowledging "the premise that [the plaintiff's] lawsuit proceeds under the ADAAA”). However, the ADAAA primarily effected revisions to the ADA’s definition of "disability.” See Adair, 823 F.3d at 1304 (“outlin[ing] the relevant substantive changes that Congress made to the ADA by enacting the ADAAA”); Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1144 (10th Cir. 2011) ("Congress amended the ADA in 2008 ‘to correct what it viewed as an overly restrictive interpretation of the statute’s terms [i.e., regarding the meaning of “disability”] that had been adopted by the Supreme Court_”' (quoting Carmona v. Sw. Airlines Co., 604 F.3d 848, 855 (5th Cir.2010))); accord Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 188 (3d Cir. 2009) (“The ADAAA amends the ADA in important respects, particularly with regard to the definition and construction of 'disability' under the statute.”); see also Latham v. Bd. Educ. of Albuquerque Pub, Schs., 489 Fed.Appx. 239, 244 (10th Cir. 2012) (“Generally speaking, the ADAAA was intended to remove certain constraints on the definition of ‘disability’ imposed by the [Supreme] Court’s construction of the ADA.”) (collecting cases). Those revisions are not material to the disability issues that Ms. DeWitt has presented for our resolution. See Adair, 823 F.3d at 1307-08 (“Congress’s 2008 amendments to the ADA did not fundamentally change the qualification requirement.” (quoting Brown v. City of Jacksonville, 711 F.3d 883, 888 (8th Cir. 2013))); Hawkins, 778 F.3d at 879 n.1 (though acknowledging that the plaintiffs "lawsuit proceeds under the ADAAA,” electing to “apply the standards of the ADA” where the plaintiff's “disability vel non is not disputed"). Therefore, though we refer to Ms. DeWitt’s disability-related claims as alleging violations of the ADAAA — in recognition of the time period during which they accrued — we freely rely on authorities prior to ADAAA’s effective date that apply and construe the ADA, insofar as they are relevant. See Hawkins, 778 F.3d at 879 n.l.

      . In light of this disposition, we deny as moot SWBTC's motion to strike.

      . On appeal from a ruling granting summary judgment, ”[w]e view the facts, and all reasonable inferences those facts support, in the light most favorable to the nonmoving party.” Hawkins, 778 F.3d at 882 (alteration in original) (quoting Simmons v. Sykes Enters., Inc., 647 F.3d 943, 947 (10th Cir. 2011)), cert. denied, — U.S. —, 136 S. Ct. 690, 193 L.Ed.2d 520 (2015). We recite the following facts accordingly.

      . Even if we were free to apply the Sixth Circuit’s variant of the honest-belief rule (which we are not), it would not benefit Ms. DeWitt. We have already identified the particularized facts on which Ms. Baskett-McEnany relied in forming her belief that Ms. DeWitt intentionally dropped the calls in Part IV.B.l, supra, and we could easily conclude that Ms. Baskett-McEnany reasonably relied on those facts.

      . Ms. DeWitt admitted as much in her deposition testimony. When asked if it would be "problematic” for "a service to be [mistakenly] added to a customer account without the customer knowing,” Ms. DeWitt responded, "Yes.” Aplt.’s App. at 189.

      . Mr. Rivera was aware of it of course, but rather than endorse it, he affirmatively rejected it: When Ms. Kloxin displayed animus for Ms. DeWitt by dancing and exclaiming that she "finally got that bitch,” Mr. Rivera told Ms. Kloxin that her behavior was "not appropriate.” Aplt.’s App. at 458.


source: Caselaw Access Project

author: MORITZ, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Reginald HUMPHREY, Defendant-Appellant.
    No. 15-4182
    United States Court of Appeals, Tenth Circuit.
    Filed January 18, 2017

      Kathryn N. Nester, Federal Public Defender, and Scott Keith Wilson, Assistant Federal Public Defender, District of Utah, Salt Lake City, Utah, for Defendant-Appellant.
    John W. Huber, United States Attorney, and Ryan D. Tenney, Assistant United States Attorney, District of Utah, Salt Lake City, Utah, for Plaintiff-Appellee.
    Before HARTZ, BACHARACH, and MORITZ, Circuit Judges.
   MORITZ, Circuit Judge.

Reginald Humphrey appeals the denial of his motion to dismiss an indictment charging him with one count of producing child pornography in violation of 18 U.S.C. § 2251(a). Humphrey asserts the district court erred in rejecting his argument that applying § 2251(a) to the intrastate production of child pornography violates the Commerce Clause. Finding no basis to overturn our prior precedent rejecting this same argument, we affirm.

Background

In 2007, S.L. told police that Humphrey, her mother’s live-in boyfriend, had been sexually abusing her for the past two years in their Utah home. While investigating these allegations, police found videos and still images on Humphrey’s laptop computer and digital camera depicting the abuse. But they found no evidence that Humphrey transmitted the videos or images over the internet or otherwise shared them with anyone. Humphrey pled guilty in state court to one count of rape and one count of forcible sexual abuse, and the state court imposed a prison term of five years to life.

A federal grand jury subsequently indicted Humphrey for, in relevant part, one count of producing child pornography, in violation of 18 U.S.C. § 2251(a). Humphrey moved to dismiss the indictment, arguing that applying § 2251(a) to his solely intrastate production of child pornography violates the Commerce Clause. Citing this court’s precedent holding otherwise, the district court denied the motion. Humphrey then conditionally pled guilty, reserving his right to appeal the district court’s ruling. See Fed. R. Crim. P. 11(a)(2). The district court imposed a 16-year prison sentence with a 4-year downward adjustment for time served on the undischarged state sentence. See U.S.S.G. § 5G1.3(b)(l). Humphrey appeals.

Discussion

In his plea, Humphrey admitted that he sexually assaulted S.L., produced a video of the assault using a digital camera that had traveled in interstate commerce, and transmitted the video to his laptop using an SD eard that had also traveled in interstate commerce.

There’s no question that § 2251(a) prohibits Humphrey’s conduct. See § 2251(a) (prohibiting using “any minor to engage in ... sexually explicit conduct for the purpose of producing any visual depiction of such conduct ... if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means”). Rather, the question is whether applying § 2251(a) to Humphrey’s conduct — i.e., locally producing child pornography for personal consumption without placing the pornographic images into the stream of interstate commerce — violates the Commerce Clause. This is a question of law that we review de novo. United States v. White, 782 F.3d 1118, 1123 (10th Cir. 2015). But, as Humphrey acknowledges, this is a question we’ve already answered.

In United States v. Jeronimo-Bautista, 425 F.3d 1266 (10th Cir. 2005), we held that applying § 2251(a) to the purely intrastate production of child pornography doesn’t violate the Commerce Clause. 425 F.3d at 1273. There, the defendant and two other men took photographs as they sexually assaulted a 13-year-old girl in Utah. Id. at 1268. Neither the victim nor the photographs ever crossed state lines. And there was no evidence that the defendant intended to transmit the photographs across state lines. But the camera, which wasn’t manufactured in Utah, had traveled in interstate commerce. Id.

As here, the defendant argued that applying § 2251(a) to his solely intrastate conduct violated the Commerce Clause. Id. at 1267. Relying extensively on the Supreme Court’s then-recent decision in Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005), we rejected that argument. Jeronimo-Bautista, 425 F.3d at 1271-73. In Raich, the Court upheld Congress’ power to regulate the purely local production, possession, and consumption of medical marijuana. 545 U.S. at 8-9, 125 S.Ct. 2195. In doing so, the Court relied in part on Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942). Raich, 545 U.S. at 17, 125 S.Ct. 2195. In Wickard, the Court upheld Congress’ power to regulate a farmer’s local production of wheat intended solely for personal consumption, reasoning that “even if [the farmer’s] activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.” 317 U.S. at 118,125,129, 63 S.Ct. 82.

Drawing on Raich and Wickard, we concluded in Jeronimo-Bautista that “the intrastate production of child pornography could, in the aggregate, have a substantial effect on the interstate market for such materials.” 425 F.3d at 1272. We reasoned that, like the statute at issue in Raich, § 2251(a) regulates an economic activity because it regulates “the ‘production, distribution, and consumption’ ” of a commodity — i.e., child pornography — “for which there is an established, and lucrative, interstate market.” Id. at 1271 (quoting Raich, 545 U.S. at 26, 125 S.Ct. 2195). We further reasoned that Congress rationally determined that the activity of locally producing child pornography “constitute[s] an essential part of the interstate market for child pornography that is well within Congress’ power to regulate.” Id. at 1273.

Humphrey acknowledges our decision in Jeronimo-Bautista. But he urges us to overturn it in light of National Federation of Independent Business v. Sebelius, 567 U.S. 519, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012) (NFIB). Relying on Chief Justice Roberts’ concurring opinion, he argues that NFIB invalidated our analysis in Jeronimo-Bautista by clarifying that Congress can’t “regulate inactivity in an interstate market, regardless of the potential economic impact of such.” Aplt. Br. 8. And, he argues, because he never distributed child pornography across state lines, applying § 2251(a) to his conduct impermissibly regulates his “non-participation or inactivity[ ] in the relevant interstate market.” Id. at 9.

We disagree. In NFIB, the Court considered a Commerce Clause challenge to the Patient Protection and Affordable Care Act’s individual mandate provision. In a fractured opinion, five justices agreed on one point: The Commerce Clause broadly authorizes Congress to regulate commercial activity, but not to compel individuals to engage in commercial activity. See NFIB, 182 S.Ct. at 2587 (Roberts, C.J., concurring) (stating that Commerce Clause doesn’t authorize Congress to “compel[] individuals to become active in commerce by purchasing a product”); id. at 2644 (Scalia, J., dissenting) (stating in dissent joined by three other justices that “one does not regulate commerce that does not exist by compelling its existence”). All five justices characterized the individual mandate provision as an impermissible attempt to force individuals to participate in the commercial activity that Congress sought to regulate. Id. at 2590-91 (Roberts, C.J., concurring); id. at 2649 (Scalia, J., dissenting).

But those same five justices recognized the breadth of Congress’ power to regulate commercial activity. And all five justices described Wickard’s ruling as exemplifying the outer edge of that power. See NFIB, 132 S.Ct. at 2588 (Roberts, C.J., concurring) (noting that unlike individuals in NFIB who chose not to buy health insurance, “[t]he Farmer in Wickard was at least actively engaged in the production of wheat, and the [government could regulate that activity because of its effect on commerce”); id. at 2648 (Scalia, J., dissenting) (noting that Wickard, involved commercial activity — i.e., the production of wheat — rather than commercial inactivity — i.e., “the failure to grow wheat”). Here, Humphrey didn’t fail to produce child pornography; he actively engaged in producing it. That makes him akin to the farmer in Wickard, not the uninsured individuals in NFIB.

More importantly, in rejecting the government’s attempt in NFIB to stretch the Commerce Clause’s reach beyond Wick-ard’s outer boundary, all five justices reaffirmed the principles from Raich and Wickard that guided our analysis in Jeron-imo-Bautista. First, Congress’ power to regulate commerce “extends to [intrastate] activities that ‘have a substantial effect on interstate commerce’” — even if those activities impact interstate commerce “only when aggregated with similar activities of others.” NFIB, 132 S.Ct. at 2585-86 (Roberts, C.J., concurring) (quoting United States v. Darby, 312 U.S. 100,119, 61 S.Ct. 451, 85 L.Ed. 609 (1941)). Second, that power includes the authority to regulate “those who by some preexisting activity bring themselves within the sphere of federal regulation.” Id. at 2592. Third, and finally, that power includes the authority to regulate intrastate conduct when failing to do so would “substantially undercut” Congress’ attempt to regulate the relevant interstate market. Id. at 2593.

In short, to the extent that NFIB says anything binding about the reach of Congress’ Commerce Clause authority, it doesn’t say anything to suggest that reach no longer extends as far as Raich and Wickard held. Thus, contrary to Humphrey’s argument, NFIB didn’t invalidate our analysis in Jeronimo-Bautista. Nor did it undermine our conclusion there that Congress has the power to regulate locally-produced child pornography because (1) there is a thriving interstate market for it, and (2) Congress has a rational basis for determining that the impact of not regulating the purely intrastate production of child pornography would substantially affect interstate commerce. Jeronimo-Bau-tista, 425 F.3d at 1271-72.

In any event, even assuming that NFIB cast doubt on Raich’s continuing validity, the Court’s more recent decision in Taylor v. United States, — U.S.-, 136 S.Ct. 2074, 195 L.Ed.2d 456 (2016), erases that doubt. There, the defendant challenged two Hobbs Act robbery convictions. Specifically, he argued that the government failed to prove that by robbing two Virginia drug dealers, he affected or attempted to affect commerce as required by the Hobbs Act’s commerce element. Id. at 2078-79.

The Court disagreed. Id. at 2081-82. In doing so, it reiterated that Congress has the power to regulate activities that “substantially affect interstate commerce in the aggregate, even if their individual impact on interstate commerce is minimal.” Id. at 2079 (citing Wickard, 317 U.S. at 125, 63 S.Ct. 82); see also id. at 2081 (“[I]t makes no difference under [the Court’s Commerce Clause] cases that any actual or threatened effect on commerce in a particular case is minimal.”).

In considering the reach of the Hobbs Act’s commerce element, the Court noted it need only “graft [the Court’s] holding in Raich onto the commerce element.” Id. at 2080. The Court said, “Raich established that the purely intrastate production and sale of marijuana is commerce” subject to federal regulation. Id. Thus, the Court held, “if the [government proves beyond a reasonable doubt that a robber targeted a marijuana dealer’s drugs or illegal proceeds,” the government proves the commerce element — i.e., “that commerce over which the United States has jurisdiction was affected.” Id. at 2080-81. Thus, Taylor bolsters our conclusion that NFIB didn’t implicitly abrogate Raich.

Finally, as the government points out, every other circuit to address the issue has concluded that NFIB didn’t alter Congress’ authority to regulate the intrastate production of child pornography. See United States v. Sullivan, 797 F.3d 623, 631-32 (9th Cir. 2015) (concluding that NFIB doesn’t apply to regulating production of intrastate child pornography “because § 2251 and § 2252 do not compel commerce, but merely regulate an activity that Congress could rationally determine would affect interstate commerce, taken in the aggregate”), cert. denied — U.S. -, 136 S.Ct. 2408, 195 L.Ed.2d 783 (2016); United States v. Parton, 749 F.3d 1329, 1331 (11th Cir. 2014) (concluding that Chief Justice Roberts’ rationale in NFIB regarding Congress’ inability to regulate the “inactivity of ... uninsured individuals” doesn’t apply to § 2251(a), which criminalizes activity of producing child pornography); United States v. Rose, 714 F.3d 362, 371 (6th Cir. 2013) (reasoning that NFIB didn’t abrogate Raich’s holding that Congress can “regulate purely local activities that are part of an economic class of activities that have a substantial effect on interstate commerce”; and noting that unlike statutory provision at issue in NFIB, § 2251(a) doesn’t compel “into commerce individuals who have refrained from commercial activity”).

We now join these circuits in holding that NFIB didn’t abrogate Raich or otherwise impact Congress’ ability to regulate the intrastate production of child pornography. Because we remain bound by Jer-onimo-Bautista, we reject Humphrey’s argument and affirm the district court’s denial of his motion to dismiss.

      . The general rule against overturning the decision of another panel absent en banc consideration doesn’t apply "when the Supreme Court issues an intervening decision that is ‘contrary’ to or 'invalidates our previous analysis.’ ” United States v. Brooks, 751 F.3d 1204, 1209 (10th Cir. 2014) (first quoting United States v. Meyers, 200 F.3d 715, 720 (10th Cir. 2000); then quoting United States v. Shipp, 589 F.3d 1084, 1090 n.3 (10th Cir. 2009)).

      . To analyze Humphrey’s argument, we assume without deciding that Chief Justice Roberts’ opinion constitutes the Court’s opinion on the Commerce Clause’s reach. See White, 782 F.3d at 1124 n.3 (declining to decide whether any NFIB opinions on Commerce Clause were more than dicta); United States v. Robbins, 729 F.3d 131, 135 (2d Cir. 2013) (questioning whether NFIB says anything binding about Commerce Clause, but assuming without deciding that Chief Justice Roberts' statements are holdings of Court).

      . After the parties submitted their opening and response briefs, the government submitted a letter directing us to the Supreme Court's recent decision in Taylor. See Fed. R. App. P, 28(j). On the same day the government filed that letter, Humphrey sought and obtained an extension of time to file his optional reply brief. But Humphrey neither filed a reply brief nor otherwise responded to the government's letter.

      . “The Hobbs Act makes it a crime for a person to affect commerce, or to attempt to do so, by robbery.” Taylor, 136 S.Ct. at 2077 (citing 18 U.S.C. § 1951(a)).


author: SEYMOUR, Circuit Judge.

text:
    Richard Douglas HACKFORD, Plaintiff-Appellant, v. The State of UTAH; Wasatch County, a political subdivision of the State of Utah; Gary Herbert, in his capacity as Governor of Utah; Sean D. Reyes, in his capacity as Attorney General of Utah; Scott Sweat, in his capacity as County Attorney for Wasatch County, Utah; Tyler J. Berg, in his capacity as Assistant County Attorney for Wasatch County, Utah, Defendants-Appellees.
    No. 15-4120
    United States Court of Appeals, Tenth Circuit.
    Filed January 19, 2017

      Elizabeth A. Shaffer, Elizabeth A. Shaffer, PLLC, Park City, Utah, for Plaintiff-Appellant.
    Jesse Carl Trentadue (Britton R. But-terfield, with him on the brief) of Suitter Axland, PLLC, Salt Lake City, Utah, for Wasatch County Defendants-Appellees.
    Stanford E. Purser, Deputy Solicitor General (Tyler R. Green, Utah Solicitor General, Sean D. Reyes, Attorney General, Randy S. Hunter and Katharine H. Kinsman, Assistant Attorneys General, with him on the brief), Salt Lake City, Utah, for State of Utah Defendants-Appellees.
    Before HOLMES, SEYMOUR, and MORITZ, Circuit Judges.
   SEYMOUR, Circuit Judge.

Richard Douglas Hackford brought this action seeking to enjoin the State of Utah’s prosecution of the traffic offenses he committed on December 4, 2013, contending that he is an Indian and the offenses occurred in Indian Country. Concluding that Mr. Hackford failed to meet the requirements for avoiding state criminal jurisdiction, the district court denied his motion for a preliminary injunction and dismissed his complaint with prejudice. He appeals, and we affirm.

I

The parties agree that Mr. Hackford’s traffic offenses occurred on State Road 40 around Mile Post 44 in Wasatch County, Utah, within what is called the Strawberry Valley Project area. It is further undisputed that this land was originally part of the Uintah and Ouray Indian Reservation. If the Strawberry Valley Project land were still within the reservation, it would be considered “Indian Country,” which includes “all land within the limits of any Indian reservation under the jurisdiction of the United States Government.” 18 U.S.C. § 1151(a).

In dismissing the complaint, the district court held that the site of the offenses is no longer in Indian Country and that Mr. Hackford is not an Indian within the meaning of the relevant federal statutes. Because our determination that the alleged offenses occurred outside of Indian Country is sufficient to establish state jurisdiction, we need not reach the issue of Mr. Hackford’s Indian status.

II

“[W]ithin Indian country, generally only the federal government or an Indian tribe may prosecute Indians for criminal offenses.” Ute Indian Tribe of the Uintah & Ouray Reservation v. Utah (Ute VI), 790 F.3d 1000, 1003 (10th Cir. 2015); see also Cheyenne-Arapaho Tribes of Okla. v. Oklahoma, 618 F.2d 665, 668 (10th Cir. 1980) (“States have no authority over Indians in Indian Country unless it is expressly conferred by Congress”). The Supreme Court has specifically held that “Congress has not granted criminal jurisdiction to the State of Utah to try crimes committed by Indians in Indian Country.” Hagen v. Utah, 510 U.S. 339, 408, 114 S.Ct. 958, 127 L.Ed.2d 252 (1994). Accordingly, the issue here is whether the Strawberry Valley Project land ceased to be part of the Uin-tah and Ouray Indian Reservation and thereby ceased to be Indian Country, as the district court held.

Because the facts surrounding the Strawberry Valley Project land are undisputed, we review de novo “the legal conclusion drawn from them by the district court.” Blatchford v. Sullivan, 904 F.2d 542, 544 (10th Cir. 1990). In reviewing the district court’s determination that the site of Mr. Hackford’s alleged offenses is no longer Indian Country, it is useful to outline the history of this particular area and to review our past cases involving various Uintah and Ouray Indian Reservation border disputes.

The Uintah Indian Reservation was created by President Abraham Lincoln in an 1861 executive order and was later confirmed by Congress in 1864. Exec. Order of Oct. 3, 1861, reprinted in 1 Charles J. Kappler, Indian Affairs: Laws AND Treaties 900 (1904); Act of May 5, 1864, ch. 77, 13 Stat. 63. In 1882, President Chester A. Arthur created a separate Reservation for the Uncompahgre Utes by executive order. Exec. Order of Jan. 5, 1882, reprinted in Indian Affairs: Laws and Treaties, supra, at 901. In 1886, the Uintah Valley Agency, which oversaw the Uintah Reservation, and the Ouray Agency, which oversaw the Uncompahgre Reservation, were consolidated. The two Reservations were merged, creating the Uintah and Ouray Reservation. U.S. Office Of Indian Affairs, Dept. Of The Interior, Annual Report Of The Commissioner Of Indian Affairs 226 (1886).

Toward the end of the nineteenth century, federal policy shifted from creating reservations to breaking them up into individual allotments. See Solem v. Bartlett, 465 U.S. 463, 466-68, 104 S.Ct. 1161, 79 L.Ed.2d 443 (1984); see also General Allotment Act, ch. 119, 24 Stat. 388 (1887). The Uintah and Ouray Indian Reservation was not immune to this policy shift. In a series of Acts between 1902 and 1905, Congress authorized the allotment of this Reservation and provided that any surplus, unallotted land would be “restored to the pub-lie domain” and opened to homesteaders. See Hagen, 510 U.S. at 402-406, 114 S.Ct. 958; Act of May 27, 1902, ch. 888, 32 Stat. 245, 263; Act of Mar. 3, 1905, ch. 1479, 33 Stat. 1048,1069.

In 1905, Congress authorized the President to set aside part of the surplus land, before it was opened for settlement, “as an addition to the Uintah Forest Reserve” or as “a reservoir site or other lands necessary to conserve and protect the water supply for the Indians or for general agricultural development.” 33 Stat. at 1070. President Roosevelt quickly took advantage of each option by presidential proclamation, The President’s proclamation of July 14, 1905, described certain lands in the Uintah and Ouray Indian Reservation that were added to the Forest Reserve. 34 Stat. 3116,3117. In August 1905, the President set aside land for the proposed Strawberry Valley Reservoir Project. See Kathryn L. MacKay, The Strawberry Valley Reclamation Project and the Opening of the Uintah Indian Reservation, 50 Utah Historical Q. 68, 85-87 (Winter 1982). And in 1910, Congress directed the Secretary of the Interior to pay the Ute Indians the fixed sum of $1.25 per acre for this reclamation project land and provided that “[a]ll right, title, and interest of the Indians in the said lands are hereby extinguished.” Act of April 4, 1910, ch. 140, 36 Stat. 285. Much later, in 1988, nearly all of the Strawberry Valley Project lands were added to the Uinta National Forest. Act of Oct. 31, 1988, Pub. L. No. 100-563, 102 Stat. 2826, 2826-27.

The district court determined here that the Strawberry Valley Project land “ceased to be part of Indian Country when it was withdrawn from the Uintah Indian Reservation and set aside for use as a reservoir, and that the status of this land did not change when it was subsequently incorporated into the Uinta National Forest.” Aplt. App., vol. B at 354-55. We agree with this conclusion.

In Solem, the Supreme Court described the “first and governing principle” regarding the diminishment of Indian reservations:

[0]nly Congress can divest a reservation of its land and diminish its boundaries. Once a block of land is set aside for an Indian Reservation and no matter what happens to the title of individual plots within the area, the entire block retains its reservation status until Congress explicitly indicates otherwise.

465 U.S. at 470, 104 S.Ct. 1161 (internal citation omitted). “Diminishment, moreover, will not be lightly inferred.” Id. The Court will only find diminishment if “Congress clearly evince[s] an ‘intent to change boundaries.’ ” Id. (quoting Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 615, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977)).

The Ute Tribe has battled with the State of Utah over the issue of diminishment for decades. In 1975, the Tribe filed an action “seeking declaratory and injunc-tive relief establishing the exterior boundaries of the Uintah and Ouray Reservation.” Ute Indian Tribe v. Utah (Ute I), 521 F.Supp. 1072, 1075 (D. Utah 1981). The district court held that the land purchased through the 1910 Act for reservoir purposes was disestablished from the Uintah and Ouray Reservation. Id. at 1141. The court reasoned that “the transfer of all management and control of the lands to private parties, compounded with the express extinguishment of the Indians’ interest [in the Act], is inconsistent with continuing Indian reservation status.” Id.

Neither the Tribe nor the State defendants appealed the district court’s holding regarding the Strawberry Valley Project land. Ute Indian Tribe v. Utah (Ute II), 716 F.2d 1298, 1314 (10th Cir. 1983) (“Neither side disputes the trial court’s holding that the reservation was diminished to the extent of the 56,000-acre Strawberry River withdrawal.”). On rehearing en banc, we reiterated that the 1910 Act “clearly extinguished a portion of the reservation lands for reclamation purposes.” Ute Indian Tribe v. Utah (Ute III), 773 F.2d 1087, 1090 (10th Cir. 1985) (en banc). In fact, we contrasted the clarity of Congress’s intent regarding the Strawberry Valley Project land with the more ambiguous language concerning other parts of the original reservation. Id. (“Congress showed that it could be explicit when it dealt with the reclamation lands.”).

Mr. Hackford asserts that our discussion of the Strawberry Valley Project land in Ute III was not a necessary holding because the Ute Indian Tribe had not appealed that issue. See id. at 1115 (Seth, J., dissenting) (“Neither side disputes the trial court’s holding that the reservation was diminished to the extent of the 56,000-acre Strawberry River withdrawal.”). Even so, our reasoning then still stands today— when Congress passed the 1910 statute providing that the Ute Indians would be paid a fixed sum of $1.25 per acre and that “[a]U right, title, and interest of the Indians in the said lands are hereby extinguished,” it “clearly evince[d] an intent” to dimmish the Uintah and Ouray Indian Reservation. See Solem, 465 U.S. at 470, 104 S.Ct. 1161. As the Court explained in Nebraska v. Parker, “language ‘providing for the total surrender of tribal claims in exchange for a fixed payment’ evinces Congress’ intent to diminish a reservation ... and creates ‘an almost insurmountable presumption that Congress meant for the tribe’s reservation to be diminished.’ ” — U.S. -, 136 S.Ct. 1072, 1079, 194 L.Ed.2d 152 (2016) .(quoting South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 345, 118 S.Ct. 789, 139 L.Ed.2d 773 (1998), and Solem, 465 U.S. at 470-71, 104 S.Ct. 1161). Given the explicit language of the 1910 Act and its payment provision for the Strawberry Valley Project land, it is difficult to imagine a clearer example of diminishment.

Mr. Hackford nevertheless contends that even if the Strawberry Valley land lost its reservation status in 1910, the 1988 Act adding most of the Strawberry Valley land to the Uinta National Forest reinstated its reservation status. But Mr. Hackford does not provide any legal basis for this theory, and we have not found one. “[T]he test for determining whether land is Indian country does not turn upon whether that land is denominated ‘trust land’ or ‘reservation.’ Rather, we ask whether the area has been ‘validly set apart for the use of the Indians as such, under the superintendence of the Government.’ ” Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 511, 111 5.Ct. 905, 112 L.Ed.2d 1112 (1991) (quoting United States v. John, 437 U.S. 634, 648-49, 98 S.Ct. 2541, 57 L.Ed.2d 489 (1978)). Congress’s stated purpose for modifying the boundary of the National Forest was “to provide more efficient management” of lands then administered by the Bureau of Reclamation. 102 Stat. at 2826; see also H.R. Rep. No. 99-799, at 2 (1986) (explaining that “[mjodification of the boundary of the Forest would increase the administrative flexibility of the Forest Service in this area.”). There is no evidence that, by making this interdepartmental transfer, Congress intended to “set apart” the lands of Strawberry Valley as part of the Uintah and Ouray Indian Reservation.

Persevering further, Mr. Hackford argues that the State lacked jurisdiction over his traffic offenses because they occurred within a national forest, which is federal land. Federal law, however, provides that “the State wherein any such national foxiest is situated shall not, by reason of the establishment thereof, lose its jurisdiction, nor the inhabitants thereof ... be absolved from their duties as citizens of the State.” 16 U.S.C. § 480; see United States v. Fields, 516 F.3d 923, 932-33 (10th Cir. 2008) (“[T]he effect of § 480 was to enable states to ‘maintain concurrent criminal and civil jurisdiction over national forests.’” (quoting United States v. California, 655 F.2d 914, 919 (9th Cir. 1980))); see also Utah Code Ann. § 63L-1-204. The State of Utah clearly has jurisdiction over Mr. Hackford’s traffic offenses.

Given that Mr. Hackford’s traffic offenses did not occur in Indian Country, the district court properly denied his motion for a preliminary injunction and dismissed his complaint. We AFFIRM.

      . We also need not address Wasatch County's contention that the injunctive and declaratory relief Mr. Hackford seeks is barred by the Anti-Injunction Act, 28 U.S.C. § 2283, and the Younger Doctrine, see Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

      . Lands outside of a reservation can also qualify as Indian Country, because Indian Country by statute includes "dependent Indian communities” and "Indian allotments, the Indian titles to which have not been extinguished.” 18 U.S.C. § 1151(b)-(c), No argument has been made that either of these categories apply to this site.

      . The name Ouray comes from Chief Ouray, a legendary figure who served as the Chief of the Uncompahgre band of Utes from 1860 until his death in 1880. See Joey Bunch, Chief Ouray’s Acclaim was Underpinned by Search and Sorrow for Kidnapped "Apple,” Denver Post, Aug. 13, 2012, http://blogs.denverpost. com.

      . In. fact, in the present action the Ute Tribe intervened in the district court to assert that the court’s 1981 ruling on the Strawberry Valley Project land was “final and conclusive, and is binding upon the citizens of both sovereigns.” Aple. Supp, App. at 2. In so doing, the Tribe pointed out that the Department of the Interior, in response to an inquiry sent by Mr. Hacltford’s counsel, had asserted that the site of Mr. Hackford’s offenses "IS NOT WITHIN THE AREA DESIGNATED AS INDIAN COUNTRY.” Id. at 15.

      . A later Supreme Court decision, Hagen v. Utah, 510 U.S. 399, 114 S.Ct. 958, 127 L.Ed.2d 252, partially overruled Ute III but only in regard to the lands opened up for settlement, not the Strawberry Valley Project land. See Ute Indian Tribe of the Uintah & Ouray Reservation v. Utah (Ute V), 114 F.3d 1513, 1519 (10th Cir. 1997); see also Ute III, 773 F.2d at 1115 (Seth, J., dissenting) (“The Strawberty River withdrawal has no bearing on the status of lands which were subsequently to be opened [to settlement].”).

      . This is not to say that the rest of the Uinta National Forest has lost its reservation status, as Wasatch County suggests in its brief. See, e.g., Aple.-Wasatch Br. at 22 ("[T]he National Forest and Strawberry Reservoir where Hackford was stopped ... do not fall within the definition of 'Indian country.’ ”). We have repeatedly stated that the lands withdrawn in 1905 as an addition to the Uinta Forest Reserve did not cease to be part of the Uintah and Ouray Indian Reservation. See Ute VI, 790 F.3d at 1012; Ute V,\U F.3d at 1529; Ute III, 773 F.2d at 1090. Simply because a section of non-Indian land was later added to the Forest Reserve does not vitiate the reservation status of the rest of the Reserve. See Solem, 465 U.S. at 470, 104 S.Ct. 1161 ("Diminishment ... will not be lightly inferred.”).