source: Caselaw Access Project

author: McHUGH, Circuit Judge.

license: Public Domain

text:
    Steven R. WILLIAMS, Plaintiff-Appellant, v. FEDEX CORPORATE SERVICES, a Delaware corporation; Aetna Life Insurance Company, a Connecticut corporation, Defendants-Appellees.
    No. 16-4032
    United States Court of Appeals, Tenth Circuit.
    Filed February 24, 2017

      D. Scott Crook, D. Scott Crook Law, PC, Salt Lake City, Utah, for Plaintiff-Appellant.
    Patrick Daniel Riederer (Carl K Morrison and Ashley Satterfield Patterson with him on the brief), Federal Express Corporation, Memphis, Tennessee, for Defendants-Appellees.
    Before HOLMES, MATHESON, and McHUGH, Circuit Judges.
   McHUGH, Circuit Judge.

Steven Williams alleges that his former employer, FedEx Corporate Services, violated the Americans with Disabilities Act (ADA) by discriminating against him based on his actual and perceived disabilities, and by requiring his enrollment in the company’s substance abuse and drug testing program. Mr. Williams further alleges that Aetna Life Insurance Company, the administrator of FedEx’s short-term disability plan, breached its fiduciary duty under the Employee Retirement Income and Security Act (ERISA) when it reported to FedEx that Mr. Williams filed a disability claim for substance abuse. Both FedEx and Aetna filed motions for summary judgment, which the district court granted. Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 2000e-5(j), we affirm in part, and reverse and remand in part.

I. BACKGROUND

Mr. Williams began working for FedEx in 1989 and, with the exception of a two-year hiatus from 2000 to 2002, continued his employment with FedEx until 2014. In December 2010, FedEx realigned its sales territories. After a few months, Mr. Williams complained to his supervisor, Kevin Wilczynski, that the change doubled his workload. Mr. Wilczynski explained that Mr. Williams had a workload similar to other employees, that he needed to prioritize his responsibilities, and that further complaints would be unwelcomed. Mr. Wilczynski also began calling Mr. Williams “Mr. Secondary” because he thought Mr. Williams spent too much time on secondary sales accounts.

In May 2011, Mr. Wilczynski moved to another position and Michael Bautch took over as Mr. Williams’s supervisor. Mr. Williams repeated to Mr. Bautch the complaint that the new sales territory was too big to manage. In response, Mr. Bautch berated Mr. Williams, told him to stop whining, and said he was.“being a baby.” Mr. Bautch also counseled that Mr. Williams had been spending too much time on sales calls not aligned with his territory.

At the time he sought help with his workload, Mr. Williams’s duties included entering sales calls into a database known as iSell. But Mr. Williams did not record his calls in iSell from June 13 to August 25, 2011. Although Mr. Williams. claimed he later attempted to enter the calls but had technical difficulties, iSell representatives could not identify any login attempts for Mr. Williams’s account during the relevant period. On September 9, 2011, Mr. Bautch emailed Mr. Williams to ask about the missing entries, but Mr. Williams did not respond.

As of September 16, 2011, Mr. Williams still had not recorded the missing calls or responded to Mr. Bautch. At this point, David Trease took over as Mr. Williams’s supervisor and attempted to schedule an in-person meeting with him. Mr. Trease received no response until September 18, when Mr. Williams indicated through email that he had been in the emergency room and would be out of the office until September 21. On September 19, Mr. Bautch, Mr. Trease,-and a human resources representative discussed Mr. Williams’s failure to record his calls in iSell. They decided not to take disciplinary action at that time because Mr. Williams had applied for a sales position with FedEx Trade Network (FTN). Mr. Williams interviewed for the position, but he later withdrew his application because Mr. Bautch allegedly threatened “to stop [Mr. Williams] from going to [FTN] ” and took steps to follow through on this threat.

At the time Mr. Bautch and Mr. Trease were trying to talk with Mr. Williams about his iSell entries, Mr. Williams was experiencing symptoms related to withdrawal from prescribed pain medication. Mr. Williams started taking OxyContin in 2008 for chronic neck pain caused by a car accident. And he continued to take Oxy-Contin for about two years until he visited a pain specialist who documented his chief complaint as “addiction to narcotics.” The specialist diagnosed Mr. Williams with opioid dependency and prescribed Subox-one to replace the OxyContin.

■ Mr. Williams continued taking Suboxone for about a year, but in fall 2011 he went to a pain clinic to taper his Suboxone use. On September 9, 2011 — the day Mr. Bautch emailed about Mr. Williams’s iSell entries — Mr. Williams visited his primary care physician “to discuss how to handle the side effects of Suboxone withdrawal.” Mr. Williams went to the emergency room two days later, on September 11, and the next morning he requested a few sick days. Throughout the rest of' September, Mr. Williams visited his doctor multiple times with reports of “continued concerns about Suboxone withdrawal symptoms” and requests for “continued followup of his withdrawal from prescribed narcotics.”

On September 26, 2011, FedEx granted Mr. Williams a medical leave of absence. Mr. Williams’s doctor later signed a Certification of Health Care Provider for Employee’s Serious Health Condition (Family and Medical Leave Act), which identified “chronic neck pain[ and] severe anxiety” as the conditions for which he sought leave.

On September 30, 2011, Mr. Williams called Aetna, the claims administrator for the Federal Express Corporation Short Term Disability Plan (the Plan), and initiated a claim for short-term disability benefits. During his conversation with Aetna’s intake representative, Mr. Williams explained that he was requesting short-term disability benefits for work-related stress and anxiety. But he also told the representative that his withdrawal from Suboxone was currently preventing him from working.

The Plan provides up to twenty-six weeks of benefits for an “Occupational Disability,” which includes “the inability of a Covered Employee, because of a medically-determinable physical impairment or Mental Impairment, to perform the duties of his regular occupation.” But the Plan limits benefits to thirteen weeks for a “Chemical Dependency,” defined as “the habitual or. addictive use of alcohol or any controlled substance.” Although Aetna approved Mr. Williams’s claim, it determined he suffered from a “Chemical Dependency” and therefore authorized benefits for only thirteen weeks.

Shortly after Mr. Williams filed his claim under the Plan, Aetna notified FedEx that Mr. Williams had “filed a disability claim for alcohol or substance abuse.” As a result, Mr. Trease instructed Mr. Williams to call People Help, the vendor that assists FedEx employees with substance abuse problems. Mr. Williams asked why he should contact People Help and clarified that he had taken medical leave for work-related stress. Indeed, Mr. Williams had begun seeing a counselor for “recent stress and anxiety issues related particularly to his work environment,” and the counselor diagnosed Mr. Williams with adjustment disorder.

In a November 9, 2011 letter to Mr. Williams, Mr. Trease explained that Aetna reported Mr. Williams’s medical leave was “due to an alcohol/drug related illness.” Enclosed with the letter was a copy of FedEx’s Alcohol/Drug Free Workplace Policy (ADFWP), which states that “[e]m-ployees who seek assistance for drug/alcohol abuse will be subjected to return-to-duty-testing and placed in the Follow Up Testing Program for five (5) years.” Mr. Trease also told Mr.- Williams that Aetna’s report triggered a mandatory referral to People Help, and warned that failure to comply is a violation of company policy that would result in his termination.

This letter upset Mr. Williams because he felt FedEx was threatening his job when he had not sought help for a drug-related illness. Even so, Mr. Williams reported to People Help, which provided him a letter stating he had “completed a substance abuse assessment which resulted in no current substance abuse/dependence diagnosis.” Mr. Williams forwarded this letter to FedEx and Aetna, along with letters from his attorney and medical providers, asserting that Mr. Williams did not have a substance-abuse problem.

Despite these letters, FedEx determined its ADFWP applied based on Aet-na’s statement that Mr. Williams self-reported a drug-related illness. So, before Mr. Williams could return to work, he had to sign a Statement of Understanding, in which he “agree[d] to undergo a post treatment drug screen and/or alcohol test and have a negative test before returning to work.” FedEx also placed Mr. Williams in its follow-up drug testing program for five years, and required him to disclose his use of prescription medications.

While on leave, Mr. Williams further communicated with Aetna about his short-term disability benefits. As explained, Aet-na determined Mr. Williams had a “Chemical Dependency” and originally approved benefits for only thirteen weeks. Aetna provided benefits for two extra weeks when Mr. Williams had neck surgery, but it terminated his benefits on December 26, 2011, based on authorization from his doctor that he could return to work on December 27, 2011. Mr. Williams appealed the discontinuance of benefits, but Aetna denied the appeal.

Mr. Williams returned to work in early February 2012. On February 28, 2012, FedEx issued a Letter of Counseling for Unacceptable Performance and Conduct that related back to Mr. Williams’s failure to record calls in iSell the previous year. Mr. Williams continued to work at FedEx until he resigned approximately two years' later, on March 81, 2014.

On February 23, 2015, Mr. Williams filed his Third Amended Complaint, the operative complaint in this case, in which he asserted six causes of action against FedEx and/or Aetna. As relevant here, Mr. Williams alleged that FedEx discriminated against him based on his disability in violation of the ADA, and that Aetna breached its fiduciary duty to him under ERISA. The district court granted summary judgment in favor of FedEx and Aetna on all claims on January 27, 2016.

II. DISCUSSION

Mr. Williams now appeals the district court’s grant of summary judgment on his ADA discrimination claims against FedEx and his ERISA breach of fiduciary duty claim against Aetna. We address each claim below, reviewing the district court’s grant of summary judgment de novo, and applying the same legal standard as the district court. Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1124 (10th Cir. 2005). Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We view the evidence and draw reasonable inferences in the light most favorable to Mr. Williams, the nonmoving party. Bryant, 432 F.3d at 1124.

A. ADA Claims

The ADA protects individuals with real or perceived “physical disabilities or mental impairments that substantially limit major life activities.” Koessel v. Sublette Cty. Sheriff’s Dep’t, 717 F.3d 736, 742 (10th Cir. 2013) (citing 42 U.S.C. § 12102(1)(C)). In the absence of direct evidence of discrimination, as is the case here, we apply the familiar McDonnell Douglas burden-shifting framework to claims under the ADA. EEOC v. C.R. Eng., Inc., 644 F.3d 1028, 1038 (10th Cir. 2011).

Under McDonnell Douglas’s three-part analysis, a plaintiff must first establish a prime facie case of ADA discrimination by proving “(1) he is disabled (or perceived as disabled) as defined by the ADA, (2) he is qualified to perform the essential functions of his job with or without reasonable accommodation, and (3) he suffered discrimination as a result of his disability.” Koessel, 717 F.3d at 742. To “demonstrate ‘discrimination,’ a plaintiff generally must show that he has suffered an adverse employment action because of the disability.” C.R. Eng., 644 F.3d at 1038 (internal quotation marks omitted). If the plaintiff establishes a prima facie case, “the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions.” Id. If the defendant does so, “the burden shifts back to the plaintiff to show that the defendant’s stated reasons are merely ‘pretextual.’ ” Id.

Mr. Williams asserts three ADA claims: a traditional ADA discrimination claim, a regarded-as disabled claim, and a disability-related inquiry claim. Mr. Williams first challenges the district court’s ruling that he failed to present evidence supporting each element of his traditional and regarded-as ADA claims. He also argues the district court did not adequately address his disability-related inquiry claim. We address each claim in turn.

1. Traditional ADA Claim

Mr. Williams first claims that FedEx discriminated against him based on his actual disability, i.e., “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). Mr. Williams maintains that he “ha[d] been diagnosed with severe anxiety and adjustment disorder,” which “substantially limited [his] ability to sleep, concentrate, read, learn, work, and communicate.” He asserts that FedEx took adverse employment action against him based on his disability in two ways. First, Mr. Williams alleges that FedEx refused to adjust his work schedule, berated him, threatened his job, and interfered with his attempt to transfer to the FTN position. Second, he insists that FedEx subjected him to a hostile work environment.

In granting summary judgment on this claim, the district court concluded (1) that there is no evidence linking FedEx’s actions to Mr. Williams’s anxiety or stress disorder; (2) that the evidence did not establish a hostile work environment; and (3) that even if Mr. Williams could establish a prima facie case of disability-based discrimination or hostile work environment, he failed to prove that FedEx’s explanations for its actions were pretextual. We hold that the district court correctly concluded that Mr. Williams failed to establish a prima facie case of discrimination. Accordingly, we do not address whether Mr. Williams also failed to show pretext.

As an initial matter, Mr. Williams did not plead hostile work .environment in his operative complaint as a separate claim. He instead asserts, without citation, that a hostile work environment can constitute an adverse employment action under the ADA. Even if we assume that is so for purposes of analysis only, we agree with the district court that Mr. Williams failed to submit sufficient evidence of a hostile work environment.

A plaintiff claiming hostile work environment “must show that a rational jury could find that the workplace [was] permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Penry v. Fed. Home Loan Bank of Topeka, 155 F.3d 1257, 1261 (10th Cir. 1998) (citation omitted). General harassment alone is not actionable. See Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994). In examining whether a plaintiff has made the requisite showing, “we look to all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (internal quotation marks omitted).

Here, even when viewed in the light most favorable to Mr. Williams, the evidence shows only the following:

• Mr. Williams’s responsibilities increased significantly when FedEx realigned its sales territories;
• Mr. Williams repeatedly asked for help, but his requests were ignored or denied, and his supervisors “sarcastically belittled” and berated him, calling him “Mr. Secondary” and accusing him of whining and “being a baby”;
• One supervisor, Mr. Bautch, threatened to prevent Mr. Williams from transferring to the new FTN position and took specific steps to do so;
• As a result of his job-related stress, Mr. Williams experienced exacerbation of his health conditions; and
• While Mr. Williams was on medical leave, his supervisors contacted him for failing to enter his sales calls in iSell and later disciplined him when he returned to work.

Taken together, the evidence does not demonstrate Mr. Williams was subject to a hostile work environment. At most, the evidence shows that Mr. Williams struggled under a heavy workload, that he received no relief when he asked for help, and that he experienced mistreatment by and disciplinary action from his supervisors. While Mr. Williams’s allegations show he faced adversity in the workplace, we cannot say that these circumstances created an atmosphere sufficiently severe to qualify as being “permeated with discriminatory intimidation, ridicule, and insult.” Penry, 155 F.3d at 1261 (citation omitted).

Further, even if we assume Mr. Williams proved that FedEx took adverse action against him based on discrete acts or on a hostile work environment, Mr. Williams still cannot prove the third element necessary to establish a prima facie case of discrimination. Whether a plaintiff attempts to prove discrimination based on discrete acts taken by an employer or based on a hostile work environment, he must produce evidence from which a rational jury could conclude the employer took those actions because o/his disability. See MacKenzie v. City & Cty. of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005); Sandoval v. City of Boulder, 388 F.3d 1312, 1327 (10th Cir. 2004).

But here, there is no evidence that FedEx’s conduct was based on Mr. Williams’s disability. Nothing in the record indicates that anyone at FedEx even knew about Mr. Williams’s severe anxiety and adjustment disorder until he objected to placement in FedEx’s drug testing program on the ground his medical leave was for those medical conditions, and not for substance abuse. Indeed, most of FedEx’s conduct on which Mr. Williams relies occurred before this disclosure. ADA liability cannot be based on actions taken when FedEx was unaware of Mr. Williams’s disability. See C.R. Eng., 644 F.3d at 1049 (“[T]he employer must know of both the disability and the employee’s desire for accommodations for that disability.” (citation omitted)); Ainsworth v. Indep. Sch. Dist. No. 3, 232 Fed.Appx. 765, 771 (10th Cir. 2007) (unpublished) (“[W]e have held that an employer must know of a disability before it can be held liable under the ADA.”).

The only relevant action occurring after Mr. Williams disclosed his anxiety and adjustment disorder was FedEx’s disciplinary letter resulting from his earlier failure to complete iSell entries. But Mr. Williams produced no evidence suggesting that FedEx issued this letter because it learned about his anxiety and adjustment disorder.

To the contrary, Mr. Williams testified at his deposition that he did not believe FedEx took adverse employment action against him because of his disability:

Q. And how is [Mr. Bautch’s interference with two promotion opportunities] related to your condition Of severe anxiety and adjustment disorder?
A. It just completely exacerbated it.
Q. Okay. But do you think that Mr. Bautch interfered with those opportunities because you had a severe anxiety and adjustment disorder?
A. No.
Q. Do you think that FedEx required you to [participate in drug testing] because you had severe anxiety and adjustment disorder?
A. I think it’s because of them abusing their powers to put me into a drug screening program.
Q. ... Do you think that FedEx refused to accommodate you because you had severe anxiety and adjustment disorder?
A. No.
Q. Do you think that FedEx verbally berated you because you had severe anxiety and adjustment disorder?
A. No.
Q. And do you think that FedEx threatened your job because you had severe anxiety and adjustment disorder?
A. No.

The district court correctly concluded that Mr. Williams failed to produce evidence from which a reasonable jury could find that FedEx discriminated against him because of his disability. As a result, Mr. Williams cannot establish a prima facie case for his traditional ADA claim. We accordingly affirm the district court’s grant of summary judgment on this claim.

2. Regarded-As Disabled Claim

Mr. Williams also claims that FedEx erroneously regarded him as a drug addict and discriminated against him on that basis. In addition to protecting individuals from discrimination based on their actual disabilities, the ADA protects individuals who are “regarded as” having “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A), (C); see Koessel, 717 F.3d at 742. As relevant here, an individual may be regarded as disabled if he “is erroneously regarded as having engaged in [illegal use of drugs], but is not engaging in such use.” 42 U.S.C. § 12114(b)(3); see also Nielsen v. Moroni Feed Co., 162 F.3d 604, 610 (10th Cir, 1998) (“[T]he ADA protects employees who are erroneously regarded as being current illegal drug users”).

The district court granted summary judgment on Mr. Williams’s regarded-as claim because Mr. Williams produced no evidence that FedEx took adverse action against him because of his perceived disability. Although for different reasons, we conclude the district court correctly grant-. ed summary judgment on this claim. See Bolton v. Scrivner, Inc., 36 F.3d 939, 942 (10th Cir. 1994) (“We may affirm summary judgment on grounds other than those relied on by the district court when the record contains an adequate and independent basis for that result.” (Internal quotation marks omitted)).

Upon receiving notice from Aetna that Mr. Williams filed a disability claim for substance abuse, FedEx required Mr. Williams to pass a drag test before he could resume work and 'required him to remain in the company’s drug testing program for five years. We assume without deciding that these actions constitute adverse employment actions and that FedEx took these actions because it regarded Mr. Williams as having a substance abuse problem. And so, we assume for the purpose of our discussion that Mr. Williams established a prima facie case of discrimination.

The McDonnell Douglas framework next requires FedEx to assert a legitimate, nondiscriminatory reason for its actions. See C.R. Eng., 644 F.3d at 1038. FedEx states that it took those actions because its policies require mandatory enrollment in drug testing if an. employee seeks treatment for drug or alcohol abuse, and Aetna reported that Mr. Williams had taken leave due to an alcohol- or drug-related illness. FedEx has satisfied its “exceedingly light” burden to articulate a legitimate, nondiscriminatory reason. See id. at 1043.

The burden now shifts back to Mr. Williams to prove by a preponderance of the evidence that FedEx’s proffered reason was pretextual. See Johnson v. Weld Cty., 594 F.3d 1202, 1211 (10th Cir. 2010). “A plaintiff can establish pretext by showing the defendant’s proffered non-discriminatory explanations for its actions are so incoherent, weak, inconsistent, or contradictory that a rational factfinder could conclude they are unworthy of belief.” C.R. Eng., 644 F.3d at 1038-39 (internal quotation marks omitted).

Mr. Williams maintains that FedEx’s proffered reason is pretext because he sought disability benefits for his stress and anxiety — not. for a chemical dependency or substance abuse — and thus his placement in the drug testing program had to be discriminatory. Mr. Williams cites the letters from his medical providers stating he did not have an addiction problem, People Help’s report and recommendation of no substance abuse diagnosis or treatment, and Aetna’s claim manager’s deposition testimony that “[t]here was nothing in the file that said there was a substance abuse problem.” Mr. Williams also cites his testimony that he “expressed several times that [he] was requesting short-term disability officially because of stress and anxiety due to abuse at work.” Mr. Williams argues this evidence shows that he “had only been suffering from withdrawal from the physical dependence that occurs when a person is prescribed and is taking Subox-one,” and not that he was a substance abuser.

Mr. Williams focuses on the accuracy of Aetna’s report and on whether he was in fact drug dependent. But “our role isn’t to ask whether the employer’s decision was wise, fair or correct.” Johnson, 594 F.3d at 1211 (internal quotation marks omitted). Rather, “we are only concerned with whether [FedEx] held a good-faith belief’ when it took its actions. C.R. Eng., 644 F.3d at 1044. And Mr. Williams has not come forward with any evidence from which a reasonable jury could find that FedEx lacked such a belief. Aetna informed FedEx that Mr. Williams suffered from substance abuse. FedEx then acted on its good-faith belief that Mr. Williams in fact suffered from substance abuse when it placed him in its drug testing program. Nothing suggests FedEx acted with an ulterior motive; it merely enforced a policy that applies universally to all employees who seek assistance for drug or alcohol abuse. Although Mr. Williams insists Aetna erroneously stated he suffered from substance abuse, we are concerned here only with FedEx’s conduct, not Aet-na’s. There is nothing to suggest that FedEx did not act in good-faith reliance on Aetna’s statement.

Mr. Williams cannot prove pretext. As a result, summary judgment was appropriate on his regarded-as disabled claim.

3. Disability-Related Inquiry Claim

Mr. Williams further contends the district court erred when it did not address his claim that FedEx unlawfully required medical examinations and made disability-related inquiries. The ADA provides:

A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.

42 U.S.C. § 12112(d)(4)(A). A plaintiff asserting a claim under § 12112(d)(4)(A) must show (1) that he is an employee of the defendant-employer, and (2) that the defendant-employer required him to undergo a medical examination or made a disability-related inquiry of him. See Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1229 (10th Cir. 1997). The provision applies to all employees, and a plaintiff need not prove that he is disabled. Id. Even if the plaintiff makes the required showing, the employer may avoid liability by demonstrating that the medical examination or disability-related inquiry was job-related and consistent with business necessity. 42 U.S.C. § 12112(d)(4)(A).

Mr. Williams asserts that FedEx violated § 12112(d)(4)(A) when it required him to submit to monthly drug tests and to disclose his use of legally prescribed medications. To be sure, a test for “illegal use of drugs” is not considered a medical examination under the ADA. Id. § 12114(d)(1). But FedEx appears to have done more than merely subject Mr. Williams to mandatory drug testing. Mr. Williams alleged in his operative pleading that FedEx required him to disclose his use of legally-prescribed medications. And we have recognized that requiring disclosure of prescription drugs may violate § 12112(d)(4)(A). See Cheyenne Mountain Conference Resort, 124 F.3d at 1230 (agreeing with the district court that an employer’s policy violated the ADA to the extent it required prescription drug disclosures from employees); accord Harrison v. Benchmark Elecs. Huntsville, Inc., 593 F.3d 1206, 1215-16 (11th Cir. 2010) (reversing summary judgment for employer on ADA improper medical inquiry claim where employer required employee to provide his prescription medication after he failed a drug test).

The district court, however, did not address whether FedEx improperly required Mr. Williams to disclose his use of legally-prescribed prescription drugs. On that basis, we reverse in part the grant of summary judgment in FedEx’s favor, and we remand to allow the district court to address Mr. Williams’s § 12112(d)(4)(A) claim in the first instance. See Lyons v. Jefferson Bank & Tr., 994 F.2d 716, 721 (10th Cir. 1993) (stating that generally an issue must be presented to and decided by the district court before we will pass on it); Thompson v. Robison, 580 Fed.Appx. 675, 677 (10th Cir. 2014) (unpublished) (declining to address the merits of a claim in the first instance on appeal). On remand, the district court should evaluate whether there exists a genuine issue of fact for trial concerning Mr. Williams’s allegation that FedEx improperly required him to disclose his use of prescription drugs. In undertaking this analysis, the district court should consider whether FedEx implemented its purported disclosure requirement to learn whether Mr. Williams was suffering from any health defects, or for some other business purpose. See Bates v. Dura Auto. Sys., Inc., 767 F.3d 566, 576 (6th Cir. 2014) (noting that “[t]he uncovering of health defects at an employer’s direction is the precise harm that § 12112(d)(4)(A) is designed to prevent” (internal quotation marks omitted)); see also id. at 574-75, 578-79 (identifying factors relevant to determining whether an employer improperly imposed a medical examination or made a disability-related inquiry).

FedEx maintains that, even if its purported disclosure requirement amounts to an impermissible medical examination or disability-related inquiry, Mr. Williams’s claim fails for four reasons. We here reject FedEx’s first three offered reasons, but we reserve analysis of FedEx’s final argument for the district court to address in the first instance on remand.

FedEx first argues that employers may prohibit illegal drug use without offending the ADA. See 29 C.F.R. § 1630.3(a) (“The terms disability and qualified individual with a disability do not include individuals currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.”). Yet FedEx concedes that “[t]he record [i]s devoid of any facts supporting the inference that FedEx regarded [Mr.] Williams as an ‘illegal drug user.’ Quite to the contrary, and from the beginning, FedEx acknowledged that [Mr.] Williams was lawfully prescribed Subox-one.” FedEx’s argument that Mr. Williams falls outside the protection of § 12112(d)(4)(A) fails because the “illegal drug use” that would exempt an employee from the protections of the ADA “does not include the use of a drug taken under the supervision of a licensed health care professional.” See 29 C.F.R. § 1630.3(a)(2).

Second, FedEx maintains that Mr. Williams agreed to participate in the drug testing program. The evidence, however, does not support an inference that he voluntarily enrolled in the program. Before Mr. Williams could return to work, FedEx required him to sign a Statement of Understanding, which required his participation in the drug testing program. A reasonable jury could infer that he signed the document only because his job was threatened, not because he simply agreed to participate. At most, a fact issue exists about whether FedEx required participation in the drug testing program as a condition of Mr. Williams’s continued employment. We cannot affirm a grant of summary judgment on this basis.

Third, FedEx argues Mr. Williams admitted in his deposition that his disability-related inquiry claim was based on conduct by eScreen, a separate defendant dismissed earlier in the course of the case. But the record does not support this position. Although Mr. Williams testified about alleged misconduct by eScreen, Mr. Williams’s complaint specifically asserts an ADA claim against FedEx, alleging that FedEx required medical examinations in violation of § 12112(d)(4)(A). Mr. Williams also presented evidence that FedEx required his enrollment in the drug testing program as a condition of his continued employment with FedEx. And when Mr. Williams complained about the way in which eScreen conducted the drug tests, FedEx called eScreen to ensure future tests were conducted following a different protocol. Mr. Williams thus presented evidence to create a dispute about whether FedEx required and directed the relevant medical examinations.

Finally, FedEx insists it cannot be liable even if it required medical examinations and made disability-related inquiries because it had a legitimate business reason for doing so. An employer is liable for an improper medical examination or inquiry, “unless such examination or inquiry is shown to be job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A). We have recognized that “courts will readily find a business necessity if an employer can demonstrate that a medical examination or inquiry is necessary to determine whether the employee can perform job-related duties when the employer can identify legitimate, non-discriminatory reasons to doubt the employee’s capacity to perform his or her duties.” Adair v. City of Muskogee, 823 F.3d 1297, 1312 (10th Cir. 2016) (internal quotation marks omitted). FedEx argues that it satisfies the business necessity exception because its ADFWP and drug testing program “ensuref ] that employees who seek assistance for drug abuse or dependencies are no longer abusing the drug if they return to FedEx.” Even though FedEx asserted this argument below, the district court did not address it. As a result, we do not have an adequate record from which we can decide this issue on appeal. We reverse and remand to allow the district court to address this claim in the first instance.

B. ERISA Breach of Fiduciary Duty Claim

We now turn to Mr. Williams’s claim that Aetna breached its fiduciary duty under ERISA. A fiduciary like Aetna must “discharge [its] duties with respect to a plan solely in the interest of the participants and beneficiaries ... with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.” 29 U.S.C. § 1104(a)(1)(B). A fiduciary must also provide complete and accurate information. See Krohn v. Huron Mem’l Hosp., 173 F.3d 542, 547 (6th Cir. 1999).

Mr. Williams contends Aetna breached its duty (1) when it determined that he suffered from a Chemical Dependency; and (2) when it reported to FedEx that he had a substance abuse problem, and then failed to correct its report to FedEx that he had 'filed such a claim. The district court concluded that Aetna did not act arbitrarily or capriciously. We agree.

First, Mr. Williams maintains that he did not suffer from a Chemical Dependency as defined in the Plan. This claim does not appear to be a breach of fiduciary duty claim, but instead an attempt to challenge Aetna’s benefits determination. Even if we assume Aetna’s benefits determination can give rise to a fiduciary duty claim,- we conclude the claim here fails.

‘Where [an ERISA] plan gives the administrator discretionary authority, ... we employ a deferential standard of review, asking only whether the denial of benefits was arbitrary and capricious.” Eugene S. v. Horizon Blue Cross Blue Shield of N.J., 663 F.3d 1124, 1130 (10th Cir. 2011) (internal quotation marks omitted). The district court applied this standard in its review of Aetna’s conduct, and the parties agree it applies here.

Under the Plan, employees may receive up to twenty-six weeks of short-term disability benefits for an “Occupational Disability” but only thirteen weeks for a “Chemical Dependency.” A Chemical Dependency is “the habitual or addictive use of alcohol or any controlled substance.” Aetna approved Mr. Williams’s short-term disability claim, but it provided him benefits for only thirteen weeks pursuant to a finding of Chemical Dependency. Mr. Williams contends that Aetna acted arbitrarily and capriciously when it did so because he filed a claim for stress and anxiety, not for a condition qualifying as a Chemical Dependency. Indeed, Mr. Williams notes, he told Aetna about his stress and anxiety when he first made his claim.

But Mr. Williams overlooks that he also told Aetna that “he was in the process of suffering from withdrawal from legally prescribed Suboxone.” And he ignores that his medical records — which he provided to Aetna — show that in the weeks preceding his call to Aetna, he visited multiple medical providers to whom he expressed concerns about Suboxone withdrawal. These pre-claim medical records do not refer to stress or anxiety at all.

In the end, Aetna provided Mr. Williams benefits for only thirteen weeks because his medical records showed complaints relating only to his withdrawal from Subox-one, and because he self-reported that he had been struggling with symptoms of withdrawal. These records, and Mr. Williams’s own report, reasonably indicate that he was engaged in “the habitual or addictive use” of Suboxone and therefore suffered from a “Chemical Dependency” as defined in the Plan. That Mr. Williams’s doctor later signed an FMLA form in which he identified “chronic neck pain[ and] severe anxiety” as the “condition[s] for which the employee seeks leave” does not render Aetna’s finding of Chemical Dependency arbitrary or capricious.

Second, Mr. Williams argues there is a genuine dispute of fact concerning whether Aetna breached its fiduciary duty by reporting to FedEx that Mr. Williams filed a claim for substance abuse, and by later failing to correct its report. The parties again agree that an arbitrary and capricious standard applies to our review of this issue.

FedEx’s ADFWP provides, “[t]he disability vendor [Aetna] will notify [FedEx] when an employee seeks benefits for substance abuse.” “Substance abuse” in the policy includes the use of prescription drugs, and Mr. Williams indisputably experienced withdrawal of prescribed Subox-one. So, when Aetna concluded that Mr. Williams suffered from a Chemical Dependency in the form of Suboxone withdrawal, it had a duty under the ADFWP to report his condition to FedEx. Compliance with FedEx’s policy cannot constitute a breach of fiduciary duty.

To be sure, Aetna received a letter from People Help stating it had not diagnosed Mr. Williams with substance abuse. But when Aetna first reported to FedEx, Aet-na did not have the People Help letter. Rather, Aetna had Mr. Williams’s own report and his medical records that repeatedly identify and describe his Subox-one withdrawal. Mr. Williams also agreed in his deposition that Suboxone withdrawal was one of the medical conditions preventing him from working. In view of the evidence supporting its decision, Aetna did not provide inaccurate information when it reported to FedEx or when it declined to change its report upon receiving additional information about Mr. Williams’s condition.

Mr. Williams has not established that Aetna failed to act with the care required by ERISA fiduciaries. The district court correctly granted summary judgment on this claim.

C. Motion to Seal

Finally, Mr. Williams moved to file under seal Volumes III through XXXI of the Appendix. We initially denied the motion without prejudice because Mr. Williams failed to include “a statement of the opposing party’s position on the relief requested or why [he] was unable to learn the opposing party’s position.” 10th Cir. R. 27.1. Mr. Williams then filed an unopposed renewed motion. The Clerk of Court provisionally granted the motion, subject to our plenary consideration. But the Clerk later ordered the parties to file a joint response showing cause why the district court’s summary judgment order should remain under seal in this court, and why Mr. Williams should not be required to file an amended appendix and to narrow his sealing request to only those documents containing private medical information that cannot reasonably be redacted. It is the parties’ joint response to which we direct our attention.

“A party seeking to file court records under seal must overcome a presumption, long supported by courts, that the public has a common-law right of access to judicial records.”- Eugene S. v. Horizon Blue Cross Blue Shield of N.J., 663 F.3d 1124, 1135 (10th Cir. 2011). The moving party “must articulate a real and substantial interest that justifies depriving the public of access to the records that inform our decision-making process.” Id. at 1135— 36 (internal quotation marks omitted).

The parties agree in their joint response that the district court’s order should not remain under seal, but that Mr. Williams should not be required to submit an amended appendix or to narrow the scope of his sealing request. They note that many of the 1,346 record pages Mr. Williams seeks to keep under seal include documents that had been marked and filed as sealed under the district court’s standard protective order. But we are “not bound by the district court’s decision to seal certain documents below.” Colony Ins. Co. v. Burke, 698 F.3d 1222, 1241 (10th Cir. 2012). And more importantly, Mr. Williams admits he made no effort to identify the subset of documents within those sealed that actually include confidential information, or to redact private information where it reasonably could be done. Mr. Williams simply seeks to seal all documents that might include confidential information. Mr. Williams has not met his burden to articulate a real and substantial interest overcoming the presumption in favor of public access.

Undoubtedly, many of the documents Mr. Williams seeks to file under seal include his medical records and/or FedEx’s confidential information. It is also true that we have granted motions to seal medical records and internal confidential business records in other instances. See, e.g., AST Sports Sci., Inc. v. CLF Distribution Ltd., 514 F.3d 1054, 1057 n.1 (10th Cir. 2008). But the parties agree that the district court’s protective order is overbroad, and yet they fail to identify the specific portions of the record that are appropriately sealed. They also agree that the district court’s summary judgment order may now be unsealed, even though the order describes and even quotes in it much of the information Mr. Williams now seeks to keep under seal. Under these circumstances, and in view of the high standard to seal court documents, there is little justification to keep the remaining documents sealed.

We deny Mr. Williams’s motion, and order that the Appendix be unsealed twenty days from the date of this decision, unless the parties submit an amended, unsealed Appendix within fourteen days from the date of this decision. The amended Appendix, if filed, may redact Mr. Williams’s medical information that was not already disclosed in the appellate briefs or the district court’s order, and any identifying information concerning individuals who are not involved in this litigation. If the parties elect to file an amended Appendix, they shall share the cost of redacting the information and of refiling it.

III. CONCLUSION

For the reasons stated, we AFFIRM in part but REVERSE the grant of summary judgment on Mr. Williams’s claim under 42 U.S.C. § 12112(d)(4)(A). We also DENY Mr. Williams’s request for attorney fees under 42 U.S.C. § 12205 and 29 U.S.C. § 1132(g)(1), and his motion to seal the record. We remand to the district court for further proceedings consistent with this opinion.

      . The parties dispute many of the facts surrounding Mr. Williams’s claims. We have identified where disputes exist. But as required at summary judgment, we present the facts in the light most favorable to Mr. Williams, the nonmoving party. See Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1124 (10th Cir. 2005).

      . The representatives explained that some login problems might be attributed to laptop hibernation or use of an employee ID number rather than a full username.

      . Mr. Williams denies that he was dependent on OxyContin and that he was prescribed Suboxone for the purpose of treating dependency.

      . Mr. Williams also alleges that FedEx unlawfully placed him in the company’s substance abuse program and required him to disclose his use of any prescription medications. These allegations relate to his other ADA theories, which are discussed later in this opinion.

      . Of course, Mr. Williams's subjective assessment of the situation is not dispositive. But his testimony does at least reinforce our conclusion.

      . Although FedEx argues that Mr. Williams did not adequately raise a regarded-as claim before the district court, Mr. Williams asserted this claim in his Third Amended Complaint and again in opposition to FedEx's motion for summary judgment.

      . Before the district court, "FedEx d[id] not dispute that Mr. Williams was disabled under the ADA or that he was qualified with or without reasonable accommodation to perform the essential functions of his job.” FedEx limited its argument to "disputing] ... that it discriminated against [Mr. Williams] because of his disability.” FedEx now argues that this concession moots Mr. Williams’s regarded-as arguments. But FedEx misconceives Mr. Williams’s claims. Although Mr. Williams’s traditional ADA claim is based on his actual disability (i.e., his anxiety disorder), his regarded-as claim is based on a perceived disability (i.e., an erroneous perception that he was addicted to drugs). Because the disabilities differ for the two claims, the causation analysis for each is also distinct. And FedEx’s concession on the first two elements of the traditional ADA claim does not necessarily moot the elements of the regarded-as claim. As a result, we must analyze whether Mr. Williams presented evidence to support the remaining elements of his regarded-as claim based on FedEx's allegedly erroneous perception that he was addicted to drugs.

      . Mr. Williams also appeals the district court’s conclusion that Aetna owed fiduciary duties only to the Plan and not to Mr. Williams individually. Aetna does not dispute that it owed a fiduciary duty to Mr. Williams individually. Accordingly, we need not address the issue.

      . The version of the ADFWP in the record does not include the language quoted in the sentence preceding this footnote. It appears we may have a redacted copy of the policy. But in its motion for summary judgment and in its brief on appeal, Aetna quoted the language above, and Mr. Williams has not argued that the quotes are inaccurate.


author: KELLY, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. David Savoy THOMAS, Defendant-Appellant.
    No. 16-2044
    United States Court of Appeals, Tenth Circuit.
    Filed February 24, 2017

      Stephen P. McCue, Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellant.
    C. Paige Messec, Assistant United States Attorney (Damon P. Martinez, United States Attorney, with her on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.
    Before TYMKOVICH, Chief Judge, SEYMOUR, and KELLY, Circuit Judges.
   KELLY, Circuit Judge.

Defendant-Appellant David Savoy Thomas appeals from his conviction of four counts of robbery, 18 U.S.C. § 1951(a), following a jury trial. On appeal, he challenges (1) the sufficiency of the evidence on Count 1, (2) an in-court identification, and (3) the denial of his motion to sever the Count 1 robbery charge from the other robbery counts. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

Background

In December 2013, Mr. Thomas was charged with four counts of Hobbs Act robbery, which requires proof of an unlawful taking of property against another’s will “by means of actual or threatened force, or violence, or fear of injury.” 18 U.S.C. § 1951(b)(1). He was also charged with one count of using a firearm during a crime of violence. 18 U.S.C. § 924(c)(l)(A)(ii). According to the indictment, Count 1 occurred on May 1, 2010, at a McDonald’s restaurant; Counts 2 and 3 occurred on August 10 and August 17, 2013, respectively, at the same Family Dollar store; and Count 4 occurred on October 19, 2013, at a Check ⅛ Go. Count 5 alleged that Mr. Thomas used a firearm during the Count 4 robbery. Each robbery occurred near the intersection of San Pedro and Lomas NE in Albuquerque, New Mexico, and involved someone entering a store and threatening or forcing an employee to provide money from a cash register.

Prior to trial, Mr. Thomas moved to sever Count 1 from the other counts, arguing that Count 1 was not properly joined with the remaining counts and, even if joinder was proper, that it would prejudice his defense. 1 R. 19-23. The district court denied the motion, finding joinder to be proper and that Mr. Thomas had not met his burden to show that severance was warranted. United States v. Thomas, 61 F.Supp.3d 1221, 1226-27 (D.N.M. 2014).

The case then proceeded to trial on March 30, 2015. The jury convicted Mr. Thomas on Counts 1-4 (the robbery offenses), but could not reach a verdict on Count 5 (the firearm offense). The district court later sentenced Mr. Thomas to 108 months of imprisonment, followed by three years of supervised release. The evidence underlying the convictions is. discussed below, as pertinent.

Discussion

A. Sufficiency of the Evidence on Count 1

Mr. Thomas challenges the sufficiency of the evidence demonstrating force on Count 1. The government argues that plain error review applies because Mr, Thomas did not raise this specific challenge, but concedes that the review would be similar because insufficiency of the evidence generally meets the plain error test. Aplee. Br. at 17 (citing United States v. Rufai, 732 F.3d 1175, 1189 (10th Cir. 2013)). Mr. Thomas made a general motion for a judgment of acquittal, Fed. R. Crim. P. 29, at the close of the government’s case and at the end of defense testimony with respect to Count 1, and we conclude our standard of review is de novo. United States v. Johnson, 821 F.3d 1194, 1201 (10th Cir. 2016); see United States v. Kelly, 535 F.3d 1229, 1234-35 (10th Cir. 2008).

Violent force is. required to sustain a conviction under the Hobbs Act. In Johnson v. United States, the Supreme Court defined violent force as “force capable of causing physical pain or injury to another person.” 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). This requires more than the “slightest offensive touching” that may sustain a misdemeanor battery conviction, id. at 139, 130 S.Ct. 1265, but may “consist ... of only th[e] degree of force necessary to inflict pain — a slap in the face, for example,” id. at 143, 130 S.Ct. 1265.

We view the evidence in the light most favorable to the verdict and ask whether any rational trier of fact could find the element in question. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The McDonald’s employee who was acting as a cashier during the robbery testified that the robber “bumped” him, got “aggressive],” and “hit” or “pushed [him] away” as he was working. 3 R. 212-13. At the time, the employee thought someone had gotten upset with him and pushed him. Id. at 213.

Mr. Thomas argues that a push is not enough under Johnson and that the witness never testified that he experienced any pain or injury. But the push here was not slight — it was an aggressive one. “Aggression” is derived from- the Latin word “aggressio,” which means “attack,” and is defined as “a forceful action or procedure (as an unprovoked attack) esp. when intended to dominate or master.” Merriam-Webster Collegiate Dictionary (11th ed. 2004). Reading the record in the light most favorable to the verdict, we conclude that aggressive pushing, as occurred here, is sufficient under Johnson. See, e.g., United States v. Romo-Villalobos, 674 F.3d 1246, 1249-50 (11th Cir. 2012) (holding that the Florida crime of “resisting an officer with violence” requires more than de minimus force and therefore comports with Johnson). We do not read Mr. Thomas’s cases to suggest otherwise. See, e.g., United States v. Gardner, 823 F.3d 793, 804 (4th Cir. 2016) (“North Carolina has defined common law robbery to encompass cases involving the use of minimal force, which does not satisfy the condition of ‘violent force’.... ”); United States v. Flores-Cordero, 723 F.3d 1085, 1088 (9th Cir. 2013) (“Under prevailing Arizona law, the use of minimal force is sufficient to constitute ‘resisting arrest,’ ” and therefore does not meet the requirements of Johnson).

We also reject Mr. Thomas’s argument that proof of pain or injury is required. Johnson only provides that the nature of the force must be “capable of causing physical pain or injury.” 559 U.S. at 140, 130 S.Ct. 1265 (emphasis added). Of course, one may experience pain or injury from the impact of an aggressive push, by falling down or coming into contact with a wall or other object. Thus, actual pain or injury is not required and the push in this case suffices.

B. In-Court Identification

Mr. Thomas also challenges witness Angela Montez’s in-court identification on Count 2 that was admitted without judicial prescreening. He asserts this procedure violated his right to due process. Specifically, he argues that (1) the identification was unduly suggestive because he was the only African-American man at the defense table, (2) Ms. Montez had never previously been asked to identify the Count 2 robber, and (3) her in-court identification took place more than 19 months after the robbery. Our review of the identification procedure for compliance with the Constitution is de novo; the factual basis underlying the district court’s decision is reviewed for clear error. United States v. Thompson, 524 F.3d 1126, 1135 (10th Cir. 2008).

The parties disagree whether due process requires the district court to make a reliability assessment to determine the admissibility of an in-court identification. At the heart of this dispute is whether the Supreme Court’s decision in Perry v. New Hampshire, 565 U.S. 228, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012), extends to in-court identifications. In Perry, the defendant argued that the admission of an out-of-court identification violated his right to due process. The Supreme Court held that the identification was admissible because “the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement.” Id. at 248, 132 S.Ct. 716.

Since Perry, other circuits have debated whether or not the Court’s decision overruled circuit-level precedent requiring inquiries into the suggestiveness and reliability of in-court identifications. See, e.g., United States v. Correa-Osorio, 784 F.3d 11, 17-22 (1st Cir. 2015) (noting the debate and rejecting the defendant’s in-court identification argument under both Perry and the circuit’s pre-Perry suggestiveness and reliability test); Lee v. Foster, 750 F.3d 687, 690-92 (7th Cir. 2014) (inquiring into the suggestiveness and reliability of an in-court identification even after Perry). We find most persuasive the approach taken by the Eleventh Circuit in United States v. Whatley, where the court held that the Supreme Court’s decision in Perry applies not only to pretrial identifications but also to in-court identifications. 719 F.3d 1206, 1214-17 (11th Cir. 2013). The Court in Perry expressly rejected a “rule requiring trial judges to prescreen eyewitness evidence for reliability any time an identification is made under suggestive circumstances.” 565 U.S. at 240, 132 S.Ct. 716; see also Manning v. Patton, 639 Fed.Appx. 544, 548 (10th Cir. 2016) (citing Perry for the proposition that courts apply the “due process check” when law enforcement arranged the suggestive circumstances surrounding the eyewitness identification); United States v. Hill, 604 Fed.Appx. 759, 787 (10th Cir. 2015) (same). Neither the question presented to the Court nor its holding is confined to pretrial identifications. See Perry, 565 U.S. at 236, 248, 132 S.Ct. 716. Rather, the Court referred generally to “eyewitness identification[s],” id. and expressly rejected prescreening for in-court identifications, id. at 244, 132 S.Ct. 716; Whatley, 719 F.3d at 1216.

Although we must adhere to prior precedent, there are exceptions, including en banc reconsideration or supervening Supreme Court authority. In re Smith, 10 F.3d 723, 724 (10th Cir. 1993) (per curiam). Accordingly, to the extent our prior precedent indicates that a judicial reliability assessment is necessary in these circumstances, such a rule is no longer viable.

Thus, Mr. Thomas lacks the factual predicate for a judicial reliability assessment, and we must reject his argument on that score. Mr. Thomas contends that the in-court identification was unduly suggestive because he was the only African-American man at counsel table, the eyewitness had never been asked to identify the robber before, and her in-court identification occurred more than 19 months after the robbery in Count 2. These circumstances, however, were not the product of improper conduct by law enforcement — be it by police officers or the prosecution. Of course, it is customary for defendants to sit at counsel table, and defendants do not have a constitutional right to a pretrial identification. Whatley, 719 F.3d at 1216; see also United States v. Curtis, 344 F.3d 1057, 1063 (10th Cir. 2003).

Our holding is consistent with the view that evidentiary reliability is traditionally a question for the jury, not the judge, and that other due-process protections are in place that limit the weight the jury attributes to evidence that may be unreliable. See- Perry, 565 U.S. at 245, 132 S.Ct. 716.

We note that Mr. Thomas was able to confront the witness during cross-examination with the assistance of competent counsel. Cf. id. at 245-46, 132 S.Ct. 716. Indeed, Mr. Thomas’s counsel established, among other things, that the witness was not wearing her glasses on the day of the robbery, and challenged the witness’s description of the robber. See 3 R. 282-84. Mr. Thomas also presented an expert witness who testified as to the fallibility of eyewitness identifications. Id. at 382-443. Additionally, the district court instructed the jury to consider the circumstances surrounding the identification, including the manner in which Mr. Thomas was presented as well as the length of time that had passed between the commission of the offense and the subsequent identification. 1 R. 441-42; cf. Perry, 565 U.S. at 246, 132 S.Ct. 716. Whether to credit the in-court identification was the province of the jury.

C. Denial of the Motion to Sever Count 1

Mr. Thomas also challenges the denial of his motion to sever Count 1. Joinder of offenses in a single trial is appropriate when the offenses “are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.” Fed. R. Crim. P. 8(a). Even when such requirements are met, however, a trial court may elect to conduct separate trials if joinder appears to prejudice the defendant. Fed. R. Crim. P. 14(a).

We review the district court’s severance denial for abuse of discretion, while recognizing the defendant’s task in overturning such a decision is difficult. United States v. Olsen, 519 F.3d 1096, 1102 (10th Cir. 2008). Although the government argues that we should review some of Mr. Thomas’s arguments for plain error because they were not presented to the district court, under any standard of review, his arguments are unavailing. To prevail on a motion to sever, a defendant must demonstrate that the joinder would cause actual prejudice to his defense that outweighs the expense and inconvenience of separate trials. United States v. Hutchinson, 573 F.3d 1011, 1025 (10th Cir. 2009). It is not enough to show that separate trials may have afforded a better chance of acquittal. United States v. Hollis, 971 F.2d 1441, 1457 (10th Cir. 1992). Rather, to demonstrate prejudice, a defendant must show the right to a fair trial is threatened or- actually impaired. Olsen, 519 F.3d at 1103.

Essentially, Mr. Thomas argues that the robbery in Count 1 occurred three years before the other robberies, was dissimilar, would not have been admissible in a trial regarding Counts 2-4, and was based upon palm-print evidence rather than eyewitness testimony. We find no abuse of discretion in not severing.

The four robbery counts were “of the same or similar character,” Fed. R. Crim. P. 8(a) — each robbery was committed near the same intersection in Albuquerque, and Mr. Thomas was alleged to have entered the store and immediately demanded money through' the use of force or threat directed at an employee. Any prejudice resulting from the mere cumulative effect of the evidence underlying the multiple charges does not mandate severance. Hollis, 971 F.2d at 1457.

We also reject the supposition that the Count 1 evidence would have been inadmissible in a separate trial on Counts 2 through 4. Evidence of uncharged acts may be admissible as res gestae, or intrinsic evidence inextricably connected to the charged crimes. United States v. Ford, 613 F.3d 1263, 1267 (10th Cir. 2010). After all, it was Mr. Thomas’s palm print on the door of the McDonald’s robbery that led the investigating officer to suspect Mr. Thomas in the subsequent robberies and to then include his photograph in the array shown to some of the witnesses of the later robberies. See 3 R. 193-96; cf. United States v. Thomas, 223 Fed.Appx. 447, 454-55 (6th Cir. 2007) (unpublished) (upholding the admission of testimony that explained why law enforcement focused on the defendant as res gestae evidence).

Additionally, Mr. Thomas cites no authority to support his contention that the different forms of evidence for different counts (e.g., palm-print evidence for Count 1 versus eyewitness testimony for the remaining counts) warrants severance. If anything, the different forms make it more likely that the jury was able to distinguish between counts, thereby weighing against a finding of prejudice. In any event, “limiting instructions are ‘ordinarily sufficient to cure potential prejudice.’ ” Hutchinson, 573 F.3d at 1026 (quoting United States v. Hardwell, 80 F.3d 1471, 1487 (10th Cir. 1996)). Here, the jury was properly instructed that each count of the indictment and its underlying evidence must be considered independently. 1. R. 456.

AFFIRMED.

      . These orders and judgments are cited for their persuasive value on the proper scope of Perry, not as precedent.


author: HARTZ, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Steven Michael JOHN, Defendant-Appellant.
    No. 15-2178
    United States Court of Appeals, Tenth Circuit.
    FILED February 27, 2017

      Michael Keefe, Assistant Federal Public Defender, Office of the Federal Public Defender, Albuquerque, New Mexico, for De-fendanb-Appellant.
    Jennifer M. Rozzoni, Assistant United States Attorney (Damon P. Martinez, United States Attorney, with her on the brief), Office of the United States Attorney, Albuquerque, New Mexico, for Plain'tiff-Appellee.
    Before HARTZ, MURPHY, and HOLMES, Circuit Judges.
   HARTZ, Circuit Judge.

Following a jury trial in the United States District Court for the District of New Mexico, Defendant Steven John was convicted on one count of attempted aggravated sexual abuse in Indian country, see 18 U.S.C. §§ 1153(a), 2241(a)(1), and 2246(2)(B), and one count of abusive sexual contact in Indian country, see 18 U.S.C. §§ 1153(a), 2244(a)(2), and 2246(3). On appeal Defendant argues (1) that the district court violated his Sixth Amendment right to confrontation and his right to present a complete defense by restricting his cross-examination of the victim, (2) that several of the jury instructions regarding assessment of the evidence were improper, and (3) that the district court should have instructed the jury on the lesser-included offense of simple assault. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

Defendant and the victim are relatives. At trial the victim testified as follows about an incident at her home on July 18, 2013: She was showering when she heard knocking on her front door. She put on some clothes, opened the door, and saw Defendant. He asked for his sunglasses, but she told him that her niece had broken them. She closed the door on him and locked it before returning to the shower. Not long afterwards she noticed a shadow near the shower door. She cracked the shower door open and saw Defendant undressing. She asked him what he was doing. Continuing to take his clothes off, he answered, “I’m taking a shower.” R., Vol. 4 at 174. She tried to get out of the shower — stepping onto the toilet and grabbing a towel hanging on the shower door. Defendant came toward her, and a struggle ensued while both were naked. Despite her pleas to be left alone and for him to get out, Defendant grabbed the towel away from her and pulled her head toward his “private area.” Id. at 177-78. She made her way to the bathroom door to try to escape, but Defendant pulled her back toward the shower. Although she elbowed him, he got his hands around her stomach and then across her chest. She eventually was able to push Defendant down into the shower, grabbed her cell phone, got a blanket in the living room to cover herself, and ran outside, where she called the police.

Officers arrived after Defendant had left. They found the shower door tilted, the bathroom trashcan turned over, and the victim’s menstrual blood smeared on the floor. No forensic testing was conducted.

II. DISCUSSION

A. Victim Cross-Examination

At trial Defendant wanted to cross-examine the victim about her being placed in inpatient treatment at a Phoenix behavioral-health facility four months before the assault. The district court disallowed this line of questioning. Defendant challenges the court’s ruling, relying on the Confrontation Clause of the Sixth Amendment and the right to present a complete defense under the Fifth and Sixth Amendments.

We summarize what we know of the Phoenix incident from police reports and hospital records presented to the district court: In March 2013 the victim visited her sister in Phoenix. She alleged that her sister pressured her to drink alcohol, they argued, and the victim grabbed a knife and tried to cut her wrists, making superficial cuts. She was taken to the hospital. After she told the medical staff that she had been having suicidal thoughts for two years, she was transferred to an inpatient behavioral-health unit. During intake she denied using any illicit substances, despite having told the emergency-department staff that she used marijuana. The intake notes characterized the victim as having immature judgment, marked impulsivity, an evasive attitude, and a severely limited fund of knowledge. Staff determined that she had a mood disorder and needed psychotherapy. Defendant’s brief asserts that the victim was prescribed medication when she was checked out. But the discharge summary says that no medication was needed.

The victim’s sister denied to police that she had given the victim any alcohol or coerced her to drink. Because the police could not determine whether the victim got the alcohol herself or it came from her sister, they closed the case.

Defendant argues that the Phoenix incident sheds light on the accusations against him because it makes sense that the victim would falsely accuse him of sexual assault given the “earlier poorly controlled behavior, continued drug use, and ... documented psychological disorder” revealed by that incident. Aplt. Br. at 28. He says that her condition had led her to falsely accuse a family member in Phoenix and that she did it again to him. He contends that the Phoenix incident shows her “propensity to lie” and her diminished capacity to “observe, remember[,] or narrate,” id. at 18 (internal quotation marks omitted), which resulted from her “drug use” and “impulsive behavior,” id. at 21-22. And he concludes that testimony on this incident, in light of the lack of physical evidence and the evidence of the victim’s “ongoing substance abuse,” may have led the jury to draw “vital inferences” in his favor. Id. at 20.

Much of this argument is not properly before us on appeal. At trial the only reason his counsel gave for wanting to question the victim on the Phoenix incident was to show that she had an impaired “ability to perceive events, to relate those events, to narrate those events, to remember those things.” R., Vol. 4 at 33. Counsel failed to argue that he should be able to use the incident to impeach her veracity on cross-examination, even after the prosecutor brought up Fed. R. Evid. 608(b), which allows cross-examination regarding “specific instances of a witness’s conduct in order to attack ... the witness’s character for truthfulness.” Indeed, counsel rejected the possibility, saying, “Rule 608 deals with truthfulness or untruthfulness — character for truthfulness or untruthfulness, and that’s not what we’re pointing to in this, so I don’t think Rule 608 applies at all.” R., Vol 4 at 37. This was an “intentional relinquishment or abandonment of a known right,” United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), which precludes Defendant from arguing on appeal that he should have been permitted to cross-examine the victim to challenge her veracity based on the Phoenix incident, see id. at 732-33, 113 S.Ct. 1770; United States v. Cruz-Rodriguez, 570 F.3d 1179, 1183 (10th Cir. 2009).

There remains only the argument that Defendant should have been allowed to cross-examine the victim on the Phoenix incident because it cast doubt on her ability to perceive, remember, and narrate events. He does not rely on the Rules of Evidence but rather raises a constitutional challenge. He argues that “[b]y unduly restricting [his] cross-examination of [the victim], the district court violated his Sixth Amendment right to confrontation and his right to present a complete defense.” Aplt. Br. at 13.

The right to cross-examine witnesses in a criminal trial is an essential part of the right to confront witnesses enshrined in the Confrontation Clause of the Sixth Amendment. See Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). But that right is not unlimited. “[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (internal quotation marks omitted). “[T]rial judges retain wide latitude ... to impose reasonable limits on ... cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Id.

As for the constitutional right to present a complete defense, it does not change the analysis on this appeal. In general, “the right to present a defense ... is a fundamental element of due process of law.” Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). In other words, a defendant has “the right to a fair opportunity to defend against the State’s accusations.” Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). In the specific context of cross-examination, however, this due-process right amounts to no more than the right to cross-examine contained in the Confrontation Clause. See id. at 294-95, 93 S.Ct. 1038.

A long line of this circuit’s opinions states that we review de novo all Confrontation Clause challenges to restrictions on cross-examination. See, e.g., United States v. Geames, 427 F.3d 1333, 1337 (10th Cir. 2005); United States v. Gault, 141 F.3d 1399, 1403 (10th Cir. 1998); United States v. Bindley, 157 F.3d 1235, 1240 (10th Cir. 1998). De novo review, of course, implies that there is only one correct ruling, leaving the trial judge with no discretion. But the Supreme Court has said that the Confrontation Clause leaves “trial judges ... wide latitude ... to impose reasonable limits on ... cross-examination.” Delaware, 475 U.S. at 679, 106 S.Ct. 1431. As a result, some circuits review only for abuse of discretion in this circumstance. See, e.g., United States v. Smith, 451 F.3d 209, 220 (4th Cir. 2006); United States v. Treacy, 639 F.3d 32, 42 (2d Cir. 2011). Others review de novo whether the trial judge has properly excluded an entire line of inquiry but review more specific limitations for an abuse of discretion. See, e.g., United States v. Larson, 495 F.3d 1094, 1101 (9th Cir. 2007) (en banc); United States v. Berrios-Bonilla, 822 F.3d 25, 31 (1st Cir. 2016) (“We engage in a two-step review in evaluating challenges to a trial court’s limitation of a cross-examination. First, we review de novo to determine whether the defendant was afforded a reasonable opportunity to impeach adverse witnesses consistent with the Confrontation Clause. If that threshold is met, we review the specific limitation imposed by the trial court on the defendant’s cross-examination for an abuse of discretion.” (brackets, citations, footnote, and internal quotation marks omitted)). At some point it may be appropriate to reexamine our standard of review. But for now we are bound to review de novo, and the standard of review does not affect the result here.

We see no violation of Defendant’s Sixth Amendment right to cross-examine witnesses. The problem for Defendant is that the Phoenix incident is not even “marginally relevant,” Delaware, 475 U.S. at 679, 106 S.Ct. 1431, to the victim’s ability to perceive, remember, or relate the shower incident. It does not show that the victim was under the influence of any drugs or alcohol on the day of the shower incident or at-trial that would have prevented her from perceiving, remembering, or relating events. Nor does it show that she suffered from some mental condition that rendered her unable to perceive, remember, or relate. No lay person could draw that inference and, as the district court noted, the defense did not have an expert witness who drew the inference.

B. Jury Instructions on Assessing the Evidence

Defendant next challenges three jury instructions — Instructions 9, 10, and 16 — that concerned assessment of the evidence. We review for abuse of discretion a district court’s decision to give a particular jury instruction. See United States v. Williamson, 746 F.3d 987, 990 (10th Cir. 2014). “In order to assess whether the court properly exercised its discretion, we review the jury instructions de novo to determine whether, as a whole, they accurately state the governing law and provide the jury with an accurate understanding of the relevant legal standards and factual issues in the case.” United States v. Faust, 795 F.3d 1243, 1251 (10th Cir. 2015) (internal quotation marks omitted). As a general rule, instructions on how to assess evidence are particularly matters of trial-court discretion, because they are directed to guiding the jurors’ common sense in the context of the case-rather than informing them of the governing law.

1. Instruction 9

Instruction 9 stated: “The testimony of the complaining witness need not be corroborated if the jury believes the complaining witness beyond a reasonable doubt.” R., Vol. 1 at 95. Defendant argues that this instruction “does not accurately reflect the government’s burden,” because the jury must find each element of the charged offenses beyond a reasonable doubt and “[bjelieving only one witness beyond a reasonable doubt is neither necessary or sufficient.” Aplt. Br. at 32. He contends that because his defense rested solely on the lack of corroboration of the victim’s account, the instruction “wiped out the primary thrust” of his defense. Id. at 35. He also complains that the instruction was “confounding” because it “demanded special attention for the complaining witness,” contrary to another instruction that told the jury not to “ ‘give special attention to any one instruction.’ ” Aplt. Br. at 32 (quoting R., Vol. 1 at 87).

The district court did not abuse its discretion by giving this instruction. The instruction did not mislead the jurors, and there was no reasonable chance that it confused them. Although it (properly) informed the jurors that it could convict on the basis of the testimony of a single witness, it did not say that they had to believe the victim. If there were any doubt, a separate instruction made it clear that the •victim could be disbelieved. Instruction 8 told the jurors that they were “the sole judges of the credibility or ‘believability’ of each witness and the weight to be given to the witness’s testimony,” and it gave them guidance on how to assess the credibility of all witnesses. R., Vol. 1 at 93. Further, nothing prevented or undermined an argument by defense counsel that the lack of corroboration prevented belief beyond a reasonable doubt. And, of course, the jurors were told that they could not convict unless they found each element of each offense beyond a reasonable doubt. Viewing the instructions as a whole, we do not think that Instruction 9 conveyed a message that the victim was especially credible. See People of the Territory of Guam v. McGravey, 14 F.3d 1344, 1345-47 (9th Cir. 1994) (approving same instruction in sexual-assault case when instruction akin to Instruction 8 was given). We reject Defendant’s challenge.

2. Instruction 10

Instruction 10 stated: “An attorney has the right to interview a witness for the purpose of learning whaf testimony the witness will give. The fact that a witness has talked to an attorney does not reflect adversely on the truth of such testimony.” R., Vol. 1 at 96. At trial, Defendant cross-examined the victim on her meetings with the prosecutor to prepare for trial, attempting to suggest that her testimony was unreliable because it was “coached.” Aplt. Br. at 12; see R., Vol. 4 at 234-36. He argues that the instruction insulated from the jury’s scrutiny the cross-examination of the victim about being improperly influenced by the prosecutor. He points to one particular event at trial. On direct examination the victim said that she had never used “spice.” The prosecutor later asked for a recess. When questioning resumed, she reversed her testimony, admitting that she had used the substance. The prosecutor commended her for coming forward. Defendant says that without Instruction 10 the victim would have been discredited for lying on the stand, but with it the jury instead was able to approve of her recess conversation with the prosecutor and to use the change in testimony to reinforce her credibility.

We are not persuaded. Instruction 10 does not misstate the law, and it educated jurors on a point that may have been unfamiliar to them. Defendant argues in essence that the instruction suggests that nothing improper could possibly occur in such discussions. But that is not what it says. And it does not prevent defense counsel from making a commonsense suggestion that the witness was influenced by inappropriate coaching. In fact, counsel did so in this case, both during cross-examination and during closing argument. Giving the instruction was not an abuse of discretion.

3. Instruction 16

Instruction 16 stated in pertinent part: “You may infer, but you are certainly not required to infer, that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted.” R., Vol. 1 at 102. Defendant argues that the instruction was (1) ambiguous, because the court did not tell the jury which element the instruction was meant to modify, and (2) confusing, because it created uncertainty as to the requisite level of intent. He asserts that Instruction 16 is meant for general intent offenses, whereas the crimes at issue require specific intent.

We have expressed discomfort with this instruction. See, e.g., United States v. Heath, 580 F.2d 1011, 1025 (10th Cir. 1978); United States v. Woodring, 464 F.2d 1248, 1251 (10th Cir. 1972) (not plain error). But we have not reversed a conviction because of its use if the court has made clear to the jury, through the jury instructions as a whole, that the burden is on the government to prove the requisite intent beyond a reasonable doubt. See Heath, 580 F.2d at 1025. That is the situation here. For example, Instruction 13 provided: “[T]he government must prove each of the following elements beyond a reasonable doubt: First, that on or about July 18, 2013, the defendant used force with intent to cause [the victim] to engage in a sexual act.” R., Yol. 1 at 99 (emphasis added). We decline to reverse on this ground. Instruction 16 is a matter of common sense, regardless of whether the intent at issue could be termed general intent or specific intent. It explicitly states that the jury need not infer the requisite intent. Counsel can still debate whether the inference is appropriate in the particular circumstances of the case.

C. Simple-Assault Instruction

Finally, Defendant argues that the district court should have instructed the jury that it could consider the lesser-included charge of simple assault, rather than just the charges of attempted aggravated sexual abuse and abusive sexual contact. We review for abuse of discretion. See United States v. Toledo, 739 F.3d 562, 568 (10th Cir. 2014).

Four conditions must be met for a defendant to be entitled to an instruction on a lesser-included offense:

First, the defendant must make a proper request; second, the lesser included offense must contain some but not all of the elements of the charged offense; third, the elements differentiating the two offenses must be in dispute; and fourth, the evidence must allow the jury to rationally acquit the defendant on the greater charge and convict on the lesser charge.

Id. The first two conditions were satisfied. As to the third, Defendant says that “[s]exual intent differentiated the two offenses and was absolutely disputed.” Aplt. Br. at 48. And as to the fourth, he says that a finding of guilt depended on believing all that the victim said yet her truthfulness could be doubted because of her drug use and the lack of corroborating forensic evidence. Thus, he argues, the jury could have found that he acted without sexual intent and convicted him of simple assault but not sexual assault. The trial judge rejected this argument, saying that “there is no evidence that [the encounter] was anything but sexual.” R., Vol. 4 at 352.

The district court got it right. The victim testified that Defendant disrobed and attempted to get in the shower with her, and that when she attempted to get away he tried to pull her head toward his “private area.” The jury could reasonably have found that the alleged incident did not occur. But in our view the district court did not abuse its discretion in finding that there was no reasonable ground for believing that Defendant assaulted the victim but not with sexual intent. See United States v. Joe, 831 F.2d 218, 221 (10th Cir. 1987) (fourth requirement for lesser-included-offense instruction on simple assault was not met because evidence “presented only the scenario that defendant-grabbed the victim, pushed her to the floor, pulled her lower clothing partly off, and pulled his pants down”). The district court properly refused to give the simple-assault instruction.

III. CONCLUSION

We AFFIRM the district court’s judgment.

      . This paragraph of Instruction 8 stated in full:
      You are the sole judges of the credibility or ‘believability’ of each witness and the weight to be given to the witness’s testimony. An important part of your job will be making judgments about the testimony of the witnesses who testified in this case. You should think about the testimony of each witness you have heard and decide whether you believe all or any part of what each witness had to say, and how important that testimony was. In making that decision, I suggest that you ask yourself a few questions: Did the witness impress you as honest? Did the witness have any particular reason not to tell the truth? Did the witness have a personal interest in the outcome in this case? Did the witness have any relationship with either the government or the defense? Did the .witness seem to have a good memory? Did the witness clearly see or hear the things about which he/she testified? Did the witness have the opportunity and ability to understand the questions clearly and answer them directly? Did the witness's testimony differ from the testimony of other witnesses? When weighing the conflicting testimony, you should consider whether the discrepancy has to do with a material fact or with an unimportant detail. And you should keep in mind that innocent misrecollection — like failure of recollection — is not uncommon. ,
      R., Vol. 1 at 93.

      . Spice is "a mixture of herbs and spices that is typically sprayed with a synthetic compound chemically similar to THC, the psychoactive ingredient in marijuana.” Drug Fact Sheet: K2 or Spice (Drug Enforcement Administration), http://www.dea.gov/druginfo/ drug_data_sheets/K2_Spice.pdf (last visited Feb. 22, 2017).