____________________________________________ No. 11-2096 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ____________________________________________ Oral Argument Requested ____________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. TRICORE REFERENCE LABORATORIES, Defendant-Appellee. ____________________________________________ On Appeal from the United States District Court for the District of New Mexico (1:09-cv-00956-JEC-DJS) The Honorable John E. Conway, Presiding ____________________________________________ REPLY BRIEF OF PLAINTIFF-APPELLANT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ____________________________________________ P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) corbett.anderson@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . iii INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A reasonable jury could find that the real reason TriCore terminated Wagoner-Alison was not poor performance but because of her disability. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 TABLE OF AUTHORITIES CASES Adler v. Wal-Mart Stores, Inc., 144 F.3d 664 (10th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . 6 Bullington v. United Air Lines, Inc., 186 F.3d 1301 (10th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . 15 Butler v. City of Prairie Village, Kan., 172 F.3d 736 (10th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . 6-7 Celotex v. Catrett, 477 U.S. 317 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526 (10th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . 4 EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184 (10th Cir. 2000). . . . . . . . . . . . . . . . . . . . . 7, 17 Goodman v. Lukens Steel Co., 482 U.S. 656 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . 4 International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 MacDonald v. Eastern Wyo. Mental Health Ctr., 941 F.2d 1118 (10th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . 17 Morgan v. Hilti, Inc., 108 F.3d 1319 (10th Cir. 1997). . . . . . . . . . . . . . . . . . 8, 15, 17 Reeves v. Sanderson Plumbing Prods. Co., 530 U.S. 133 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 Stinnett v. Safeway, Inc., 337 F.3d 1213 (10th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . 5 United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 Utahns for Better Transp. v. U.S. Dep't of Transp., 305 F.3d 1152 (10th Cir. 2002). . . . . . . . . . . . . . . . . . . . . 13-14 RULES 10th Cir. R. 10.3(E). . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Practitioner's Guide to the U.S. Court of Appeals for the Tenth Circuit (7th ed. July 2010). . . . . . . . . . . . . . . . . . . . . . . . 6 INTRODUCTION In its opening brief, the U.S. Equal Employment Opportunity Commission ("EEOC" or "Commission") argued that a jury could credit the EEOC's evidence to find that TriCore terminated Rhonda Wagoner- Alison because of her disability, and not because she committed too many registration errors. Specifically, a jury could conclude from the sequence of events after Wagoner-Alison's surgery in June 2007 that TriCore simply no longer wanted to employ her due to her disability, and that this culminated in TriCore terminating her because of her disability in October 2007. The evidence demonstrates that, from the very beginning of this period, TriCore resisted Wagoner-Alison's attempt to return and only permitted her to do so after making repeated requests for information about her limitations that TriCore already had. And although TriCore asserts it removed Wagoner-Alison from her job registering patients for poor performance, that assertion is undermined by considerable record evidence. For example, a jury could conclude that given Wagoner-Alison's satisfactory prior performance of these exact functions, it is implausible that in the first weeks of her return to work she committed registration errors so numerous and serious as to warrant her removal from the position. EEOC Opening Br. at 20-21. In addition, a jury could reject TriCore's offer of purported documentary evidence of Wagoner-Alison's poor performance, id. at 26-27, and also infer from the evidence that TriCore did not tell Wagoner-Allison prior to terminating her that her performance was not satisfactory. A jury could conclude, in fact, that TriCore made up performance problems as the reason to cover up for the real reason - TriCore simply tired of having to deal with a disabled employee. Id. at 23-25. Indeed, TriCore's reference in Wagoner-Alison's exit papers that it let her go for reasons of "health," making no mention of poor performance, is tantamount to an admission that she was terminated on the basis of disability and a reasonable jury could so find. Id. at 19-20. A jury could find that Wagoner-Alison simply did not commit the errors TriCore claims were the basis for her removal - and that TriCore did not believe she did - and that, ultimately, the preponderance of the evidence demonstrates that TriCore terminated Wagoner-Alison because of her disability. In its response brief, TriCore fails even to mention the well-settled summary judgment standard requiring that the evidence be viewed in the light most favorable to the EEOC. TriCore Br. at 10-11. Instead, it merely presents its version of the facts as told by its managers and lawyers, failing to acknowledge that a jury need not believe TriCore's account. TriCore thus invites this Court to make the same error the district court made in granting summary judgment. We respectfully ask the Court to reverse summary judgment on the termination claim and remand for trial. ARGUMENT A reasonable jury could find that the real reason TriCore terminated Wagoner-Alison was not poor performance but because of her disability. In its response brief, TriCore complains that the Commission's case must fail because there is not "any evidence that disability was a determining factor in TriCore's decision not to keep Ms. Wagoner- Alison" in the Registration Specialist position. TriCore Br. at 19 (emphasis in original). As argued in our opening brief and reiterated here, this obviously is not the case. What is true is that TriCore has little, if any, rebuttal to the evidence presented from which a jury could reasonably find in the Commission's favor. TriCore argues that there is "no" evidence of discrimination here because the Commission has pointed to no disability-based animus, stray remarks, or indication of biased motivation on the part of its decisionmakers.<1> TriCore Br. 19-20. Of course, there is no requirement in the law that a plaintiff demonstrate animus in order to prevail on a claim of intentional discrimination. See International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187, 199 (1991) (disparate treatment liability "does not depend on why the employer discriminates but rather on the explicit terms of the discrimination"); Goodman v. Lukens Steel Co., 482 U.S. 656, 668-69 (1987) (though there was "no suggestion below that the Unions held any racial animus against or denigrated Blacks generally," Unions violated Title VII and § 1981 by intentionally not pressing the work grievances of Black employees so as not to antagonize the employer or upset White workers). Rather, a plaintiff may, as the Commission has done here, present circumstantial evidence from which a jury can infer the requisite intent. E.g., Stinnett v. Safeway, Inc., 337 F.3d 1213, 1218-19 (10th Cir. 2003) (analyzing case under familiar burden-shifting framework and concluding there was sufficient "circumstantial evidence from which a fact finder might derive an inference of discriminatory intent"). TriCore's own internal record of the events surrounding Wagoner- Alison's departure from the company constitutes strong circumstantial, if not direct, evidence of its discriminatory intent. The EEOC's opening brief pointed out that, "[t]o start, the jury need look no further than the reasons for Wagoner-Alison's termination stated on her employee status sheet, signed by Tami McMahon on October 8, 2007: 'LOA [leave of absence] expired' and '[h]ealth.' AA85 (R.76-2 at 11, McMahon Dep. 111), AA276 (R.85-1 at 62). These contemporaneous reasons, on their face, contradict TriCore's explanation and raise the specter that Wagoner-Alison's disability and need for leave in the past (and possibly the future) were determining factors in her termination." EEOC Opening Br. at 20. Understandably, TriCore implores this Court to ignore the employee status sheet and its clear import that, in essentially admitting TriCore terminated Wagoner-Alison because of "health," it admits it terminated her due to her disability. TriCore urges this Court not to consider this self-incriminatory evidence because the EEOC "never made this argument below" and because, it says, a jury could only read the employee status sheet as having a benign, nondiscriminatory meaning. TriCore Br. at 31. Neither point has any merit. The status sheet, and the inferences that reasonably flow from it, is not a separate theory of liability to be waived if not argued. Rather, it is further evidence in the record considered by the district court supporting the EEOC's case and thus can and should be considered by this Court.<2> And, contrary to TriCore's assertion that the status sheet has a benign, nondiscriminatory meaning, the document is quite probative of disability discrimination as it contemporaneously connects TriCore's termination of Wagoner-Alison to her disability. Although TriCore in its brief attributes a self serving neutral explanation to what the document says, nothing in the document itself ascribes this meaning to it. TriCore further complains that there is an absence of evidence of discrimination because the EEOC has not offered any comparator evidence to make its case. TriCore Br. at 20. Discrimination, however, can be proven in various ways. Comparator evidence is not required. EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1195 n.6 (10th Cir. 2000) ("[n]othing in the case law in this circuit requires a plaintiff to compare herself to similarly-situated co-workers"). Here, the EEOC contends the circumstances leading up to and surrounding Wagoner- Alison's discharge raise an inference of disability bias. This Court has held this to be a valid method of raising such an inference. See Butler v. City of Prairie Village, Kan., 172 F.3d 736, 749 (10th Cir. 1999) (endorsing the view that a sequence of events leading to discharge can raise inference of disability bias). The EEOC's opening brief cited considerable evidence it presented below to demonstrate that the district court erred in flatly deeming TriCore's explanation for removing Wagoner-Alison from the Registration Specialist position - that she committed too many registration errors - "undisputed." EEOC Opening Br. at 22-27. The Commission highlighted such "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in [TriCore's] proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that [it] did not act for the asserted non-discriminatory reasons." Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (citation and internal quotation marks omitted). TriCore fails to respond to many of the arguments the EEOC advanced in its brief. For example, TriCore does not address the Commission's argument that the district court erroneously disregarded the fact that the August 2007 error report for Registration Specialists does not list that any errors were made by Wagoner-Alison. EEOC Opening Br. at 25. In other words, although TriCore maintains records on employee errors, none of the error reports properly considered by the district court show any errors by Wagoner-Alison. Nor does TriCore's brief address the fact that although TriCore contends it gave verbal coaching to Wagoner-Alison on September 7, 2007, for "committing numerous errors," the record memorializing this verbal coaching does not say that. Id. at 26-27. TriCore also fails to address the Commission's argument that the district court erred in failing to consider whether procedural irregularities in how TriCore purportedly applied its error policy to Wagoner-Alison are suggestive of pretext. EEOC Opening Br. at 21-23. While avoiding many of the EEOC's points, TriCore attacks Wagoner-Alison's deposition testimony and declaration, repeatedly characterizing that evidence as simply Wagoner-Alison's own assessment of her performance. TriCore Br. at 21-22, 27-28. TriCore is no doubt correct that an employee's "own opinion" about her performance is insufficient to create a fact question. TriCore Br. at 28 (citing, e.g., Simms v. Oklahoma, 165 F.3d 1321, 1329-30 (10th Cir. 1999), Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1209 (10th Cir. 1999), Webb v. Level 3 Commc'ns, 167 F. App'x. 725, 730 (10th Cir. 2006)). But that is not what happened here. Wagoner-Alison declares that the evidence within her personal knowledge of TriCore's previous actions (or inactions) toward her related to performance does not support any assertion that TriCore removed her from the Registration Specialist position for bad performance. She declares that TriCore gave her numerous awards for good work performance in the past (see AA215 (R.85-1 at 1, Wagoner- Alison Decl. ¶5)); and that TriCore never coached or disciplined her for any patient registration errors (see AA215 (R.85-1 at 1, Wagoner-Alison Decl.¶6)). Thus Wagoner-Alison states that she knows she was not fired for making errors "because I was a good employee" as evidenced by the fact that "[i]n all my years of working for TriCore, I never had any issues with my error rate or patient registration skills" (see AA217 (R.85-1 at 3, Wagoner-Alison Decl. ¶26)). TriCore's portrayal of Wagoner-Alison's declaration as simply saying "I had good performance," or "I was a good employee," is simply inaccurate. Moreover, Wagoner-Alison's deposition testimony contradicts TriCore's version of key events about matters within her personal knowledge. She testified that TriCore never met with her about any errors prior to the day of her termination, and that she heard about purported errors primarily in litigation. EEOC Opening Br. at 23-25. Viewed in the light most favorable to the EEOC's case, and in combination with the totality of evidence presented by the Commission, Wagoner-Alison's testimony certainly tends to undermine TriCore's explanation for her termination. EEOC Opening Br. at 23-25. TriCore also mischaracterizes the Commission's arguments on appeal. For example, citing the EEOC's opening brief at p.6, TriCore states that the Commission argues on appeal that "TriCore's exempting Ms. Wagoner-Alison from the 30-words-per-minute typing requirement for Registration Specialists [is] evidence that TriCore somehow set her up to fail . . . ." TriCore Br. at 30. Wagoner-Alison certainly believes this (as she states in her declaration) but the Commission makes no such argument on appeal. Similarly, TriCore states "the EEOC now, for the first time, argues that TriCore had a duty to find (or, perhaps, create) another position for Ms. Wagoner-Alison . . . ." TriCore Br. at 31. It simply is not true that the Commission makes this argument on appeal. And TriCore cites no page in the Commission's brief where we make this argument because there is none. Failing to mount any meaningful rebuttal to the Commission's case on the merits, TriCore resorts to arguing that the Commission's appeal is defeated because it has waived on appeal any challenge to the district court's holding that the Commission failed to establish a prima facie case by not specifically arguing that the district court erred in so holding. TriCore Response Br. at 8, 12-15. This is a classic red herring argument. TriCore is correct that the district court concluded that the Commission "failed to prove a prima facie case." AA346 (R.96 at 8). But viewed in context it is clear that in making this determination the district court was focused primarily on the Commission's accommodation claim - which is not on appeal. The court's view of the accommodation claim clearly jaundiced the court's view of the EEOC's termination claim. Furthermore, TriCore's argument is inconsistent. It asserts that the Commission has waived the prima facie case argument, but simultaneously argues that the EEOC contends the "'pretext' evidence alone is sufficient to establish its prima facie case of intentional discrimination on the basis of disability." TriCore Br. at 23. TriCore's argument is disingenuous. TriCore clearly understands the Commission to be challenging the entirety of the district court's summary disposition of the Commission's termination claim. In any event, TriCore elevates semantics over substance. The substance of the district court's decision on the EEOC's termination claim consisted of a pretext analysis. The court focused entirely on why it viewed TriCore's articulated legitimate nondiscriminatory reason for removing Wagoner-Alison from the Registration Specialist job - poor performance - to be "undisputed" by the EEOC's evidence. AA344-46 (R.96 at 6-8). This is a pretext analysis even under the district court's formulation of the burden-shifting framework. See AA341 (R.96 at 3 (district court's description of the pretext stage: "Assuming TriCore is able to articulate such a reason, the burden then shifts back to Plaintiff to show a genuine issue of material fact as to whether the reason is pretextual")). Because the EEOC's opening brief more than adequately addressed the district court's analysis and the errors within it, no waiver occurred. E.g., Utahns for Better Transp. v. U.S. Dep't of Transp., 305 F.3d 1152, 1175 (10th Cir. 2002) (stating waiver appropriate where briefing not adequate). The distinction TriCore attempts to make between the prima facie case and pretext proves too much. The EEOC's opening brief did not argue just that TriCore's explanation for removing Wagoner-Alison from the Registration Specialist position - too many registration errors - is unworthy of credence in the abstract. Rather, in the course of explaining that a jury could find TriCore's explanation a pretext for disability discrimination, the Commission's arguments on appeal encompass the prima facie case. The EEOC's opening brief provides a complete analysis to enable this Court to determine whether, based on the evidence presented, a reasonable jury could find discrimination vel non - the ultimate issue. And as TriCore has articulated its legitimate non-discriminatory reason for the termination, this Court's inquiry is properly focused on questions of pretext. See Reeves v. Sanderson Plumbing Prods. Co., 530 U.S. 133, 142-43, 146-47 (2000); United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714-15 (1983). To establish a prima facie case, the EEOC must show that (1) Wagoner-Alison was disabled; (2) she was qualified to perform the essential functions of the job with or without a reasonable accommodation; and (3) TriCore terminated Wagoner-Alison under circumstances which give rise to an inference that the termination was based on her disability. Morgan, 108 F.3d at 1323. The first element is undisputed; the second and third prongs were clearly contested in the Commission's opening brief. The Commission's brief pointed to evidence that Wagoner-Alison possessed the minimal qualifications sufficient to meet the second prong as to the Registration Specialist position, "even if the defendant disputes that evidence." Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1316 n.11 (10th Cir. 2006). As the EEOC stated in its opening brief, "TriCore put her in the Registration Specialist job for a 30-day trial period because it believed she was qualified given her successful performance of the same function as a TriCore phlebotomist the previous three years. AA83 (R.76-2 at 9, McMahon Dep. 94), AA107 (R.76-9 at 3, Hahn Dep. 42), AA275 (R.85-1 at 61)." EEOC Opening Br. at 6. In fact, she "received a promotion . . . that necessarily depended in part on her proficiency in patient registration, and her performance evaluation for 2006 - which included a period in which she performed patient-registration-only duties after returning from surgery - said she met expectations in regard to accuracy. AA129 (R.76-14 at 4, Aguirre Dep. 77), AA242 (R.85-1 at 28, Wagoner-Alison 2006 performance evaluation subsections 7 and 11), AA247-60 (R.85-1 at 33-46, Certificates of Recognition), AA280 (R.85-1 at 66, Rogers Dep. 46)." EEOC Opening Br. at 21. TriCore attempts to dispute the EEOC's evidence that Wagoner- Alison was qualified, pointing to Wagoner-Alison's failure to pass the typing test. TriCore Br. at 16. But at the same time, TriCore concedes that it believed she had the requisite training and skills for the job and that it waived the test for every Registration Specialist. Id. at 4. Given this evidence, a reasonable jury would have no trouble finding that Wagoner-Alison met the minimal qualifications for purposes of establishing a prima facie case.<3> TriCore further contends Wagoner-Alison was unqualified because, it says, she "demonstrated an inability to enter patient data ... without making excessive errors." TriCore Br. at 16. As argued above and in the Commission's opening brief at pp. 21-27, the evidence on this point is highly disputed. In addition, this argument inappropriately collapses the pretext determination into the prima facie case. This Court has held that "a defendant cannot defeat a plaintiff's prima facie case by articulating the reasons for the adverse employment action" because it short-circuits the analysis. Horizon, 220 F.3d at 1193 (restating holding of MacDonald v. Eastern Wyo. Mental Health Ctr., 941 F.2d 1118, 1119-20 (10th Cir. 1991)). Finally, in its opening brief, the Commission more than adequately addressed concerns relevant to the third prong - that there are circumstances which give rise to an inference that the termination was based on disability. Indeed, the entire opening brief makes this point. For prima facie case purposes, however, this element presents a far lower hurdle than demonstrating a pretext for discrimination does - it simply requires "some affirmative evidence that disability was a determining factor in the employer's decision." Morgan, 108 F.3d at 1323-24. Accordingly, since the Commission clearly placed in issue the question of pretext, which TriCore concedes, it necessarily has not waived any argument as to this element. CONCLUSION As the moving party, TriCore bears the burden of showing that the law requires summary judgment based on undisputed material facts. Celotex v. Catrett, 477 U.S. 317, 325 (1986). Yet TriCore has done little more than selectively present facts in the light most favorable to its case - thus demonstrating, rather than obviating, the need for a jury to determine what the facts really are and whether TriCore terminated Wagoner-Alison because of her disability. The EEOC respectfully requests this Court to reverse summary judgment on the termination claim and remand for trial. Respectfully submitted, P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel _____________________ CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) corbett.anderson@eeoc.gov CERTIFICATE OF COMPLIANCE I certify that this reply brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 3,418 words excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Century Schoolbook 14 point. _____________________ CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) ECF CERTIFICATE I certify that: A. All required privacy redactions have been made; B. The hard copies of this brief submitted to the Clerk's office are exact copies of the ECF filing; and C. This submission is free of viruses according to Trend Micro. _____________________ CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4579 (phone) (202) 663-7090 (fax) CERTIFICATE OF SERVICE I certify that on September 23, 2011, I filed this Appellant's Reply Brief via the ECF system. I further certify that on this same date I sent seven hard copies, by UPS for next-day delivery to: Elisabeth A. Shumaker, Clerk of Court, U.S. Court of Appeals for the Tenth Circuit, Byron White U.S. Courthouse, 1823 Stout Street, Denver, CO 80257. I certify that on September 23, 2011, I served this Appellant's Reply Brief via the ECF system on Appellee TriCore Reference Laboratories. I further certify that on this same date, I sent two hard copies, by UPS for next-day delivery to Counsel for Appellee, Lisa Mann and Alex Walker, of Modrall Sperling, 500 Fourth Street, NW, Suite 1000, Albuquerque, NM 87102. _____________________ Corbett L. Anderson Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202)663-4579 ********************************************************************************** <> <1> It is curious that TriCore would point to the lack of "stray remarks" to support its contention that there is no evidence that discrimination "was a determining factor" given that many courts view truly stray remarks as insufficient to establish the requisite causal nexus. E.g., Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 531 (10th Cir. 1994) (holding comments best characterized as "stray remarks" did not demonstrate nexus to plaintiff's termination). <2> By contrast, TriCore has submitted a supplemental appendix containing exhibits, and arguments based on them, that the district court expressly did not consider. R.95. While relevant portions of briefs below and exhibits thereto should be included in the parties' appendices, appellate review is limited "to the materials the district court considered. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998)." EEOC Opening Br. at 13. Moreover, "items excluded from the record on appeal by 10th Cir. R. 10.3(E) should not be included in an appendix unless they are necessary to support an issue on appeal." Practitioner's Guide to the U.S. Court of Appeals for the Tenth Circuit, at 27 (7th ed. July 2010). The Commission believes TriCore's supplemental appendix is not proper for consideration by the Court because the district court expressly declined to consider these materials and they are not necessary to this appeal. <3> Interestingly, although TriCore argues that Wagoner-Alison was not qualified because she failed the typing test, it points out that the typing requirement had nothing to do with its assessment of her performance and, by implication, nothing to do with her termination. TriCore Br. at 30.