Full opinion text
McHUGH, Circuit Judge. Several years after a tank car spill accident, Larry D. Lincoln and Brad C. Mosbrucker (collectively "Appellants") advised BNSF Railway Company ("BNSF") that medical conditions attributable to the accident rendered them partially, permanently disabled and prevented them from working outdoors. Upon learning of Appellants' alleged medical conditions, BNSF removed Appellants from service as Maintenance of Way ("MOW") workers purportedly due to safety concerns and because MOW work entails outdoor work. With some assistance from BNSF's Medical and Environmental Health Department ("MEH"), Appellants each applied for more than twenty jobs within BNSF during the four years following their removal from service. After not being selected for several positions, Appellants filed charges with the Equal Employment Opportunity Commission ("EEOC"), accommodation request letters with BNSF, and complaints with the Occupational Safety Health Administration ("OSHA"). Following BNSF's rejection of their applications for additional positions, Appellants filed a complaint raising claims for: (1) discrimination under the Americans with Disabilities Act ("ADA"); (2) failure to accommodate under the ADA; (3) retaliation under the ADA; and (4) retaliation under the Federal Railroad Safety Act ("FRSA"). In a motion for summary judgment, BNSF raised an exhaustion defense and also challenged the merits of Appellants' claims. Relying on nearly forty years of precedent from this court, the district court concluded that filing an EEOC charge was a jurisdictional prerequisite to suit and it dismissed several parts of Appellants' ADA claims for lack of jurisdiction. The district court simultaneously granted summary judgment on the portions of the ADA claims that survived its jurisdictional ruling, concluding that Appellants neither qualified for the positions for which they applied nor established an inference of discrimination relative to BNSF's decision not to select them for the positions. As to the FRSA claims, the district court determined that Appellants failed properly to exhaust their OSHA administrative remedies relative to most of the positions to which they applied and failed to show that their engagement in protected activity contributed to BNSF's decision not to select them for positions that survived the exhaustion determination. On appeal, Appellants, and the EEOC as amicus, ask this panel to overturn this court's precedent that filing an EEOC charge is a jurisdictional prerequisite to suit. After polling the full court, we overturn our precedent that filing an EEOC charge is a jurisdictional prerequisite to suit. Thus, we reverse the district court's jurisdictional rulings and remand Appellants' ADA discrimination and ADA failure to accommodate claims relative to some of the positions over which the district court determined it lacked jurisdiction. Appellants also challenge the vast majority of the district court's summary judgment determinations on the merits of their claims that survived the court's exhaustion rulings. But in advancing their arguments on appeal, counsel for Appellants submitted a deficient appendix that fails to satisfy the requirements set out in Federal Rules of Appellate Procedure 10(b)(2) and 30(a)(1) and in Tenth Circuit Rule 10.3. These deficiencies impede our ability to reach firm conclusions on the viability of portions of Appellants' ADA discrimination and failure to accommodate claims and on the entirety of Appellants' ADA retaliation claims. On the position-based ADA discrimination and failure to accommodate claims for which we are able to reach a firm conclusion, we affirm in part and vacate in part. We also affirm the district court's grant of summary judgment on Appellants' FRSA claims. Finally, based on the deficiencies in the appendix submitted by Appellants, we invoke our discretion under Federal Rule of Appellate Procedure 39(a)(4) to preclude Appellants from seeking any of their appellate costs and instead permit BNSF to recover its appellate costs. I. BACKGROUND A. Factual History On October 9, 2007, a BNSF tank car sprung a leak near where Appellants were working, exposing Appellants to 2-chlorobenzyl chloride. Following the tank car spill accident, Appellants attempted, for over two years, to negotiate a monetary settlement with BNSF as to the injuries they sustained from the accident. During that two-year period, Appellants continued to perform their duties as MOW workers for BNSF. By May 2010, settlement negotiations broke down and an attorney representing Appellants relative to the accident sent BNSF demand letters. The demand letter on behalf of Mr. Lincoln stated that Mr. Lincoln continued to suffer from headaches, upper respiratory infections, reactive airways dysfunctions syndrome ("RADS"), nosebleeds, lesions/hormonal issues, endocrine disruption, vision issues, post-traumatic stress disorder ("PTSD"), and anxiety issues as a result of the accident. The demand letter on behalf of Mr. Mosbrucker stated that Mr. Mosbrucker continued to suffer from eye issues, respiratory issues, and PTSD as a result of the accident. MEH received word of the demand letters, consulted with a BNSF field medical officer, and determined the medical issues alleged in the demand letters raised concerns about whether Appellants could safely perform their duties as MOW workers. Accordingly, MEH placed Appellants on medical leave pending medical evaluations. In 2010 and 2011, BNSF received correspondence from Appellants' nurse practitioners indicating Appellants could not return to their MOW positions or perform any outdoor work. From 2010 through at least late 2012, MEH encouraged Appellants to engage in vocational training and to pursue college degrees in the hope of qualifying and being selected for non-MOW positions at BNSF. MEH also identified several positions to which Appellants might apply and helped advance their applications to the interview stage of the hiring process. Between August 2, 2010, and March 28, 2013, Mr. Lincoln submitted twenty-one job applications. BNSF did not select Mr. Lincoln for any of these positions. In July 2014, the union to which Mr. Lincoln and other BNSF railway workers belonged selected Mr. Lincoln for a Safety Assistant position, but BNSF rejected the selection. Between August 2, 2010, and November 24, 2014, Mr. Mosbrucker submitted twenty-two job applications; BNSF did not select him for any of these positions. The positions for which Appellants applied fell into two categories-clerk positions and shop positions-with most of the shop positions being performed primarily in Building 12 of BNSF's Topeka, Kansas, railyard. Jeanne Artzer, a BNSF Human Resources employee, was the hiring manager for most or all of the positions to which Appellants applied after September 2012. B. Pre-Litigation Procedural Events Relevant to ADA & FRSA Claims The following pre-litigation procedural events are relevant to either the triggering of rights or the exhaustion of administrative remedies under the ADA or the FRSA. First, on October 1, 2012, Appellants each submitted an accommodation request letter to BNSF, seeking a job placement with a restriction for only infrequent exposure to the outdoors. Both letters asked BNSF to "enter into the interactive process" and to "continue the present search for a non-MOW placement for [each of the Appellants] within BNSF." BNSF App'x at 271, 718. However, neither Appellant attached any documentation from a health professional to his accommodation request letter, as required by the form instructions. Thus, while Appellants' accommodation request letters suggested that Appellants believed they could perform the duties of a position that entailed some outdoor exposure, the only medical documentation BNSF ever received indicated that Appellants could not work outdoors at all. Second, the following administrative actions occurred relative to the EEOC. On February 10, 2013, Appellants each filed an EEOC charge. On May 7, 2015, Mr. Mosbrucker filed a second charge with the EEOC. On July 22, 2015, the EEOC issued Mr. Lincoln a right to sue letter. Meanwhile, the EEOC issued Mr. Mosbrucker right to sue letters on July 24, 2015, and on September 15, 2015. Third, the following administrative actions occurred relative to the OSHA. On September 12, 2014, Mr. Lincoln filed a complaint with the OSHA. Meanwhile, Mr. Mosbrucker filed an initial complaint with the OSHA on November 13, 2014, and an amended complaint with the OSHA on January 28, 2015. C. Procedural Events in Litigation Appellants initiated this action by filing a three-count complaint. Count One of the complaint alleged that BNSF violated the FRSA by retaliating against Appellants for reporting a safety concern, reporting injuries and requesting treatment, and filing complaints with the OSHA. Count Two alleged disability discrimination and a failure to accommodate under the ADA. Count Three raised a claim for retaliation under the ADA. BNSF filed a motion to dismiss portions of each claim, arguing that (1) Appellants failed to exhaust their ADA administrative remedies relative to employment actions before April 16, 2012-more than 300 days before Mr. Lincoln filed his sole EEOC charge and more than 300 days before Mr. Mosbrucker filed his first EEOC charge; (2) Mr. Lincoln failed to exhaust his FRSA administrative remedies relative to employment actions occurring before March 16, 2014-more than 180 days before his OSHA complaint-or after September 12, 2014, the date of his OSHA complaint; and (3) Mr. Mosbrucker failed to exhaust his FRSA administrative remedies relative to employment actions occurring before May 17, 2014-more than 180 days before his first OSHA complaint-or after January 28, 2015, the date of his second OSHA complaint. Before the completion of briefing on BNSF's motion to dismiss, the parties resolved the motion via stipulation. After identifying the dates on which Appellants filed their respective complaints and charges with the OSHA and the EEOC, the stipulation stated that (1) Mr. Lincoln had exhausted his OSHA remedies relative to FRSA claims arising between March 16, 2014, and September 12, 2014; (2) Mr. Mosbrucker had exhausted his OSHA remedies relative to FRSA claims arising between May 17, 2014, and September 12, 2014; and (3) both Appellants had "exhausted their [EEOC] administrative remedies for employment actions occurring on or after April 16, 2012." App. App'x at 29-30. The case proceeded through discovery to the summary judgment stage. In moving for summary judgment, BNSF advanced a new exhaustion defense, contending that Mr. Lincoln failed to exhaust his ADA administrative remedies relative to employment actions occurring after he filed his EEOC charge and that Mr. Mosbrucker failed to exhaust his ADA administrative remedies relative to employment actions occurring between February 11, 2013-the date of his first EEOC charge-and July 1, 2014-300 days before he filed his second EEOC charge. In support of this argument, BNSF noted that "[e]xhaustion of administrative remedies is a jurisdictional prerequisite to bringing a lawsuit in federal court under the ADA." BNSF App'x at 86 (citing Shikles v. Sprint/United Mgmt. Co. , 426 F.3d 1304, 1310, 1317 (10th Cir. 2005) ). Separately, BNSF contended that each of the Appellants' claims failed on the merits, raising arguments including: (1) Appellants were not qualified for any of the positions to which they applied; (2) BNSF hired more qualified applicants for each position such that Appellants failed to advance sufficient evidence to permit the inference that BNSF's hiring decisions were the result of discrimination; and (3) the individuals involved in the hiring process did not know that Appellants engaged in protected activity for purposes of Appellants' FRSA claims. The district court granted BNSF's motions for summary judgment, dismissing all of Appellants' claims. In granting the motions, the district court concluded that Appellants failed to exhaust their administrative remedies relative to some of the positions and that their claims based on the positions on which they had exhausted their administrative remedies lacked merit. On appeal, Mr. Lincoln raises arguments challenging the entirety of the district court's summary judgment ruling. Meanwhile, Mr. Mosbrucker challenges the entirety of the district court's ruling, except for the dismissal of his ADA claims based on the clerk positions and the dismissal of his FRSA claims based on positions other than his November 26, 2014, application for the Mechanical Shop Laborer position. Rather than summarize the district court's conclusions and the parties' arguments here, we summarize them when addressing each claim. Our task is complicated, however, because the district court's conclusions, as well as the Appellants' arguments, rely on evidence and documents not included by Appellants in the appendix they submitted in this court. II. STANDARD OF REVIEW We review the district court's rulings on summary judgment de novo, applying the same standard as the district court. See Universal Underwriters Ins. Co. v. Winton , 818 F.3d 1103, 1105 (10th Cir. 2016). 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) ; accord Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). For purposes of summary judgment, "[t]he nonmoving party is entitled to all reasonable inferences from the record." Water Pik, Inc. v. Med-Sys., Inc. , 726 F.3d 1136, 1143 (10th Cir. 2013). However, "if the nonmovant bears the burden of persuasion on a claim at trial, summary judgment may be warranted if the movant points out a lack of evidence to support an essential element of that claim and the nonmovant cannot identify specific facts that would create a genuine issue." Id. at 1143-44. In reviewing a grant of summary judgment, "we 'need not defer to factual findings rendered by the district court.' " Amparan v. Lake Powell Car Rental Cos. , 882 F.3d 943, 947 (10th Cir. 2018) (quoting CareFirst of Md., Inc. v. First Care, P.C. , 434 F.3d 263, 267 (4th Cir. 2006) ). Finally, "we can affirm on any ground supported by the record, so long as the appellant has had a fair opportunity to address that ground." Alpine Bank v. Hubbell , 555 F.3d 1097, 1108 (10th Cir. 2009) (internal quotation marks omitted). III. DISCUSSION A. ADA Claims 1. Exhaustion of Administrative Remedies We begin by analyzing whether Appellants exhausted their administrative remedies and what effect a failure to exhaust has on a federal court's ability to consider a claim under the ADA. The answers to these questions factor into our analysis of which BNSF positions unsuccessfully sought by the Appellants we may consider when addressing the merits of their ADA claims. a. Exhaustion requirement "Title 42 U.S.C. § 2000e-5(e)(1) is a charge filing provision that 'specifies with precision' the prerequisites that a plaintiff must satisfy before filing suit." Nat'l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 109, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (quoting Alexander v. Gardner-Denver Co. , 415 U.S. 36, 47, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) ). Section 2000e-5(e)(1) imposes the following requirement on the filing of a charge relative to the occurrence of an allegedly unlawful employment practice: A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred ... except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice ... such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred 42 U.S.C. § 2000e-5(e)(1) (emphasis added). "A plaintiff normally may not bring a Title VII action based upon claims that were not part of a timely-filed EEOC charge for which the plaintiff has received a right-to-sue-letter." Foster v. Ruhrpumpen, Inc. , 365 F.3d 1191, 1194 (10th Cir. 2004) (internal quotation marks omitted). "This individual filing requirement is intended to protect employers by giving them notice of the discrimination claims being brought against them, in addition to providing the EEOC with an opportunity to conciliate the claims." Id. at 1195. Furthermore, "each discrete incident of [discriminatory or retaliatory] treatment constitutes its own 'unlawful employment practice' for which administrative remedies must be exhausted." Martinez v. Potter , 347 F.3d 1208, 1210 (10th Cir. 2003) (citing Morgan , 536 U.S. at 110-13, 122 S.Ct. 2061 ). Thus, where discrete incidents of discrimination occur after an employee files an initial EEOC charge, the employee must file an additional or amended charge with the EEOC to satisfy the exhaustion requirement as to discrete incidents occurring after the initial charge. See id . at 1210 (finding allegations as to September 2000 reprimand and April 2001 termination unexhausted where employee filed charge in July 1999 even though September 2000 and April 2001 incidents were part of a continuing pattern of alleged unlawful action). As relevant here, each rejection of an applicant for an open position is a discrete incident of alleged discrimination for purposes of exhausting administrative remedies. Morgan , 536 U.S. at 114, 122 S.Ct. 2061. b. Jurisdictional defect or affirmative defense? For nearly forty years, this court has steadfastly held that exhaustion of administrative remedies is a "jurisdictional prerequisite to suit." Sampson v. Civiletti , 632 F.2d 860, 862 (10th Cir. 1980) ; see MacKenzie v. City & Cty. of Denver , 414 F.3d 1266, 1274 (10th Cir. 2005) ("In the tenth circuit, a plaintiff must exhaust her claims before the EEOC as a prerequisite to federal court jurisdiction over her ADA claims."); Bertsch v. Overstock.com , 684 F.3d 1023, 1030 (10th Cir. 2012) ("This court has held the exhaustion requirement is a jurisdictional prerequisite to suit under Title VII."). Applying this principle to situations where additional discrete incidents of discrimination occur after a plaintiff files an initial charge with the EEOC, we have held that "federal courts lack jurisdiction over incidents occurring after the filing of an EEOC claim unless the plaintiff files a new EEOC claim or otherwise amends her original EEOC claim to add the new incidents." Eisenhour v. Weber Cty. , 744 F.3d 1220, 1227 (10th Cir. 2014). The district court accurately concluded that Mr. Lincoln failed to exhaust his administrative remedies for all job applications he submitted (1) more than 300 days before his lone EEOC charge and (2) after his lone EEOC charge. Faithfully applying our precedent, the district court held it lacked jurisdiction over portions of Mr. Lincoln's ADA claims based on positions to which he applied before April 16, 2012, or after February 10, 2013. This had the effect of excluding from consideration two positions: (1) Boilermaker-applied for March 28, 2013, and (2) Mechanical Shop Laborer-applied for March 28, 2013. As to Mr. Mosbrucker, after determining that his second EEOC charge did not relate back to the date of his first EEOC charge, the district court concluded that Mr. Mosbrucker failed properly to exhaust his administrative remedies for all job applications submitted between the date of his first EEOC charge and 300 days before his second EEOC charge. Thus, the district court held it lacked jurisdiction over portions of Mr. Mosbrucker's ADA claims based on positions to which he applied between February 10, 2013, and July 11, 2014. This had the effect of excluding from consideration four positions: (1) Boilermaker-applied for March 28, 2013; (2) Mechanical Shop Laborer-applied for March 28, 2013; (3) Mechanical Shop Laborer-applied for August 21, 2013; and (4) Part Time Analyst/Senior Analyst-applied for August 31, 2013. On appeal, Appellants urge this panel to depart from this court's long-standing precedent that filing an EEOC charge is a jurisdictional prerequisite to suit. In their opening brief, Appellants contend that our precedent (1) cannot be squared with Zipes v. Trans World Airlines, Inc. , 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) ; (2) is no longer in line with the decisions of other circuits; and (3) has been questioned by other panels of this court. BNSF does not defend the reasoning of our precedent, arguing only that we, as a panel of this court, are bound by it. BNSF is correct that "one panel of the court cannot overrule circuit precedent." United States v. Walling , 936 F.2d 469, 472 (10th Cir. 1991). "Absent an intervening Supreme Court or en banc decision justifying such action, we lack the power to overrule [a prior panel decision]." Berry v. Stevinson Chevrolet , 74 F.3d 980, 985 (10th Cir. 1996). A Supreme Court decision is "intervening" if it "is contrary to or invalidates our previous analysis." United States v. Brooks , 751 F.3d 1204, 1209 (10th Cir. 2014) (internal quotation marks omitted). Although the date of a Supreme Court decision relative to this court's past decisions may play a role in determining if the Supreme Court decision is an "intervening" decision, a Supreme Court decision that predates a decision of this court can still qualify as "intervening" if this court's subsequent decision did not mention or address the Supreme Court decision. Auraria Student Hous. at the Regency, LLC v. Campus Vill. Apartments, LLC , 843 F.3d 1225, 1242 (10th Cir. 2016). In Zipes , the Supreme Court confronted the issue of "whether the statutory time limit for filing charges under Title VII ... is a jurisdictional prerequisite to a suit in the District Court." Zipes , 455 U.S. at 387, 102 S.Ct. 1127. In addressing the issue, Zipes engaged in two inquires: (1) Did the jurisdictional provision of Title VII contain any language regarding the timely filing of an EEOC charge? and (2) Was the statutory provision establishing the time limit for filing an EEOC charge phrased in jurisdictional terms? See id. at 393-94, 102 S.Ct. 1127. Answering both inquiries in the negative, Zipes held that filing an EEOC charge within the statutory time limit established by 42 U.S.C. § 2000e-5(e)(1) was not a jurisdictional prerequisite to suit. Id. at 392-94, 102 S.Ct. 1127. Instead, a plaintiff's failure to file a timely EEOC charge permits a defendant only an affirmative defense, a defense subject to waiver, estoppel, and equitable tolling. See id. at 392, 398, 102 S.Ct. 1127. The statutory language establishing the time limit to file an EEOC charge is the same language that imposes a duty on the plaintiff to file an EEOC charge before bringing suit. See 42 U.S.C. § 2000e-5(e)(1). And nothing in the provision authorizing federal courts to take jurisdiction over ADA claims contains a requirement that a plaintiff exhaust his administrative remedies before filing suit. See 42 U.S.C. § 2000e-5(f)(3). Thus, at first blush, Zipes appears to qualify as an intervening decision that permits a panel of this court to overrule our prior precedent. But the Supreme Court decided Zipes in 1982. Fourteen years later, in Jones v. Runyon , 91 F.3d 1398 (10th Cir. 1996), a panel of this court considered whether Zipes defeated our precedent. Although recognizing that other circuits had relied on Zipes to hold that the filing of an EEOC charge is not a jurisdictional requirement, Jones concluded that Zipes pertained only to the timeliness of an EEOC charge. Thus, we concluded in Jones , that Zipes did not supersede our precedent that the filing of an EEOC charge was a jurisdictional prerequisite to suit. 91 F.3d at 1399 n.1. As such, Jones already considered and rejected the proposition that Zipes was an intervening decision sufficient to permit a panel of this court to reverse our precedent. We are bound by Jones. The EEOC, in its role as amicus, argues that our precedent is also inconsistent with Arbaugh v. Y&H Corp. , 546 U.S. 500, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). Assuming that we may consider the EEOC's argument regarding Arbaugh even though Appellants do not cite Arbaugh in their opening brief, we remain unconvinced that, as a panel, we are able to overturn this court's precedent. In Arbaugh , the Supreme Court revisited whether statutory requirements in Title VII are jurisdictional. 546 U.S. at 503, 126 S.Ct. 1235. After the jury awarded a verdict in favor of the employee, the employer filed a motion to dismiss claiming the district court lacked jurisdiction because the employer had fewer employees than the minimum necessary to impose liability under Title VII. Id. at 504, 126 S.Ct. 1235. The district court granted the defendant's motion to dismiss and the circuit court affirmed. Id. at 504, 509, 126 S.Ct. 1235. Applying the reasoning of Zipes , the Supreme Court held that the numerical qualification requirement was not jurisdictional because the requirement did not appear in Title VII's jurisdictional provision and was not expressed in jurisdictional terms. Id. at 511, 514-15, 126 S.Ct. 1235. While Arbaugh supports Appellants' position that exhaustion is not jurisdictional, it merely applied the teachings of Zipes to another provision in Title VII. As we have already determined that Zipes is not an intervening decision that permits a panel of this court to reverse our precedent, see Jones , 91 F.3d at 1399 n.1, it follows that Arbaugh , which merely applies Zipes, also does not qualify as an intervening decision. This is particularly true where Zipes dealt with the specific provision governing the filing of an EEOC charge while Arbaugh dealt with a provision of Title VII unrelated to the filing of an EEOC charge. Therefore, neither Appellants nor the EEOC has cited an intervening Supreme Court decision that permits us, as a panel of this court, to overrule a prior panel decision. In spite of this analysis, we agree with Appellants' and the EEOC's argument that our precedent is incorrect. The jurisdictional provision of Title VII states: Each United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions brought under this subchapter. Such an action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office. For purposes of sections 1404 and 1406 of Title 28, the judicial district in which the respondent has his principal office shall in all cases be considered a district in which the action might have been brought. 42 U.S.C. § 2000e-5(f)(3). This provision makes no mention of any requirement to exhaust administrative remedies or to file an EEOC charge before bringing suit. Further, as earlier noted, the provision requiring that an ADA claimant file an EEOC charge, 42 U.S.C. § 2000e-5(e)(1), is the same provision that sets the timeframe for filing an EEOC charge. In fact, the language setting the timeframe for filing an EEOC charge is the only language requiring that a plaintiff, in fact, file a charge. See 42 U.S.C. § 2000e-5(e)(1). While § 2000e-5(e)(1) places a mandatory duty on a plaintiff to file an EEOC charge, nothing in the provision discusses a court's authority to hear a case. And, where the timeliness and filing requirement language in § 2000e-5(e)(1) is one and the same, § 2000e-5(e)(1) cannot logically be read as speaking in jurisdictional terms relative to the filing of an EEOC charge but not in jurisdictional terms relative to the timeliness of filing an EEOC charge. Thus, Zipes 's conclusion that the timeliness requirement is not phrased in jurisdictional terms leads to the conclusion that the filing requirement is also not phrased in jurisdictional terms. While, as an individual panel, we cannot overrule our precedent, "[o]ne panel ... may overrule a point of law established by a prior panel after obtaining authorization from all active judges on the court." United States v. Meyers , 200 F.3d 715, 721 (10th Cir. 2000). In accord with this practice, we have circulated this opinion to all active members of this court and all active, non-recused members of the court have concurred with our conclusion that our precedent that the filing of an EEOC charge is a jurisdictional prerequisite to suit is no longer correct. See e.g. Shikles , 426 F.3d at 1317 ("Unlike many other circuits, we have held that a plaintiff's exhaustion of his or her administrative remedies is a jurisdictional prerequisite to suit under Title VII-not merely a condition precedent to suit."); MacKenzie , 414 F.3d at 1274 ("In the tenth circuit, a plaintiff must exhaust her claims before the EEOC as a prerequisite to federal court jurisdiction over her ADA claims.") Sampson , 632 F.2d at 862 ("Exhaustion is a jurisdictional prerequisite to suit ...."). Thus, the full court now holds that a plaintiff's failure to file an EEOC charge regarding a discrete employment incident merely permits the employer to raise an affirmative defense of failure to exhaust but does not bar a federal court from assuming jurisdiction over a claim. Accordingly, we reverse the district court's jurisdictional rulings and turn to the question of whether BNSF waived its failure to exhaust defense relative to some of the positions to which Appellants applied. c. Impact of stipulation on BNSF's ability to raise an affirmative defense As noted earlier, the parties agreed to the following terms when stipulating to the resolution of BNSF's motion to dismiss portions of Appellants' claims for a failure to exhaust: 8. Plaintiff Lincoln filed a single FRSA complaint with the Department of Labor's Occupational Safety and Health Administration ("OSHA") dated September 12, 2014. 9. Therefore, the applicable timeframe for which Plaintiff Lincoln has viable FRSA claims is March 16, 2014 through September 12, 2014. 10. Plaintiff Mosbrucker filed an original FRSA complaint on November 13, 2014 and later amended that complaint on January 28, 2015. 11. Therefore, the applicable timeframe for which Plaintiff Mosbrucker has viable FRSA claims is May 17, 2014 through January 28, 2015. 12. Plaintiffs Lincoln and Mosbrucker both filed charges with the Equal Employment Opportunity Commission ("EEOC") on February 10, 2013. Plaintiff Mosbrucker filed an amended charge with the EEOC on May 7, 2015. 13. Therefore, Plaintiffs Lincoln and Mosbrucker have exhausted their administrative remedies for employment actions occurring on or after April 16, 2012. App. App'x at 29-30. Appellants contend that we should read Paragraph 13 as an agreement by the parties that Appellants exhausted their administrative remedies for all positions to which they applied on or after April 16, 2012. Appellants further contend that, by agreeing to Paragraph 13, BNSF waived its exhaustion defense relative to any positions to which Appellants applied on or after April 16, 2012. Because the district court concluded that the failure to file an EEOC charge was jurisdictional, it did not reach the question of whether the stipulation foreclosed BNSF's failure to exhaust defense with respect to positions to which Appellants applied on or after April 16, 2012. In resolving a dispute, "[w]e cannot overlook or disregard stipulations which are absolute and unequivocal. Stipulations of attorneys may not be disregarded or set aside at will." United States v. N. Colo. Water Conservancy Dist. , 608 F.2d 422, 431 (10th Cir. 1979) (citations omitted). "Litigation stipulations can be understood as the analogue of terms binding parties to a contract." TI Fed. Credit Union v. DelBonis , 72 F.3d 921, 928 (1st Cir. 1995). Under Kansas law, "[t]he primary rule in interpreting written contracts is to ascertain the intent of the parties." BancInsure, Inc. v. F.D.I.C. , 796 F.3d 1226, 1233 (10th Cir. 2015) (quoting Liggatt v. Emp'rs Mut. Cas. Co. , 273 Kan. 915, 46 P.3d 1120, 1125 (2002) ). Furthermore, [u]nambiguous contracts are enforced according to their plain, general, and common meaning in order to ensure the intentions of the parties are enforced. The intent of the parties is determined from the four corners of an unambiguous instrument, harmonizing the language therein if possible. Ambiguity does not appear unless it is genuinely uncertain which of two or more meanings is the proper meaning. Neustrom v. Union Pac. R.R. Co. , 156 F.3d 1057, 1063 (10th Cir. 1998) (ellipsis omitted) (quoting Hall v. JFW, Inc. , 20 Kan.App.2d 845, 893 P.2d 837, 840 (1995) ). "A contract is ambiguous if it 'contains provisions or language of doubtful or conflicting meaning, as gleaned from a natural and reasonable interpretation of its language.' " BancInsure, Inc. , 796 F.3d at 1233 (quoting O'Bryan v. Columbia Ins. Grp. , 274 Kan. 572, 56 P.3d 789, 792 (2002) ). "Courts 'should not strain to create an ambiguity where, in common sense, there is none.' " Id. (quoting First Fin. Ins. Co. v. Bugg , 265 Kan. 690, 962 P.2d 515, 519 (1998) ). Finally, a court should consider extrinsic or parol evidence only after it has concluded that the plain language of the contract is ambiguous. Barbara Oil Co. v. Kansas Gas Supply Corp. , 250 Kan. 438, 827 P.2d 24, 35 (1998). Paragraph 13 of the stipulation states: "Therefore, Lincoln and Mosbrucker have exhausted their administrative remedies for employment actions occurring on or after April 16, 2012." App. App'x at 30. It is phrased in the absolute and constitutes an agreement between the parties that exhaustion was not an issue for any position applications or employment actions occurring on or after April 16, 2012. There is no ambiguity in this language, and the stipulation is best read as a waiver by BNSF of its exhaustion defense for all employment actions occurring on or after April 16, 2012. In an effort to escape the plain language of the stipulation, BNSF asks us to consider (1) the context under which the parties entered into the stipulation-that the stipulation resolved a motion to dismiss ADA claims based on employment actions before April 16, 2012; and (2) its understanding of the scope of the stipulation-that, relative to the ADA claims, the stipulation resolved only the viability of claims based on positions to which Appellants applied before April 16, 2012. BNSF's understanding of the stipulation, however, constitutes parol evidence. See Sylvia v. Wisler , 875 F.3d 1307, 1330 (10th Cir. 2017) (defining parol evidence to include "prior or contemporaneous ... understandings tending to vary the terms of the contract" (quoting Decatur Cty. Feed Yard, Inc. v. Fahey , 266 Kan. 999, 974 P.2d 569, 574 (1999) ) ). Thus, our conclusion that the relevant portions of the stipulation are not ambiguous precludes us from considering BNSF's understanding of the stipulation. See Barbara Oil Co. , 827 P.2d at 35. Having determined the clear meaning of the stipulation, we remand to the district court to decide whether to enforce its terms against BNSF. A court will not always enforce the terms of a stipulation in the rigid manner that a court typically enforces the terms of a contract. This is particularly true when a stipulation is entered into to resolve a limited matter that arises during the course of litigation. "Case law is clear that 'a stipulation of counsel originally designed to expedite the trial should not be rigidly adhered to when it becomes apparent that it may inflict a manifest injustice upon one of the contracting parties.' " TI Fed. Credit Union , 72 F.3d at 928 (quoting Marshall v. Emersons Ltd. , 593 F.2d 565, 568 (4th Cir. 1979) ). Further, "[r]elief from erroneous stipulations is especially favored where the mistake made concerns a legal conclusion," and courts "are not bound to accept as controlling, stipulations as to questions of law." Id. (citing Saviano v. Comm'r of Internal Revenue , 765 F.2d 643, 645 (7th Cir. 1985), for first phrase and quoting Estate of Sanford v. Comm'r , 308 U.S. 39, 51, 60 S.Ct. 51, 84 L.Ed. 20 (1939), in second phrase). Finally, we have noted that "[e]ven though a court may not overlook stipulations as a matter of course, no rule of law requires a court to base the resolution of the case on stipulations of the parties." O'Connor v. City & Cty. of Denver , 894 F.2d 1210, 1226 n.12 (10th Cir. 1990). Ultimately, "the district court is vested with broad discretion in deciding whether to enforce [the] parties['] stipulation or not." Miller v. Eby Realty Grp. LLC, 396 F.3d 1105, 1116 (10th Cir. 2005) ; see O'Connor , 894 F.2d at 1226 n.12 ("The court determines the effect, if any, of the stipulations."). The district court had no need to consider whether it would enforce the plain language of the stipulation because it was bound by our prior precedent that some of the position-specific portions of the ADA claims failed for lack of jurisdiction. But the district court, being more familiar with the course of the motion to dismiss, as well as this litigation as a whole, is in the best position to determine what effect should be given to the stipulation. Further complicating that question is the fact that under our prior precedent, BNSF, when it agreed to Paragraph 13 of the stipulation, might not have been concerned about foreclosing an exhaustion defense because parties cannot stipulate to a court's jurisdiction over a matter. See Ry. Co. v. Ramsey , 89 U.S. 322, 327, 22 Wall. 322, 22 L.Ed. 823 (1874) ("Consent of parties cannot give the courts of the United States jurisdiction."). Finally, before this court, neither party adequately or directly briefed this issue. Accordingly, on remand of any claim the district court dismissed for lack of jurisdiction, the district court should determine, in light of cases such as TI Federal Credit Union , Marshall , and O'Connor , what, if any, force should be accorded the stipulation. Having reached these conclusions regarding the exhaustion question, we pause to address an issue that impedes our merits review of the claims properly before us: the deficient manner in which Appellants' counsel has compiled the appendix. 2. Appellants' Appendix The Federal Rules of Appellate Procedure, this court's Local Rules, and this court's cases interpreting and enforcing compliance with both sets of rules establish clear parameters for what materials an appellant must include in the appendix. The duty to file an appendix that complies with the requirements set out by the Federal Rules of Appellate Procedure and our Local Rules falls squarely on the appellant. Tilton v. Capital Cities/ABC, Inc. , 115 F.3d 1471, 1474 (10th Cir. 1997) ; see Fed. R. App. P. 30(a)(1) ; 10th Cir. R. 30.1(b)(1). When an appellant contends the district court's findings and conclusions were contrary to the evidence presented, the appellant "must include in the record a transcript of all evidence relevant to that finding or conclusion ." Fed. R. App. P. 10(b)(2) (emphasis added). Likewise, Federal Rule of Appellate Procedure 30 states, "[t]he appellant must prepare and file an appendix to the briefs containing: (A) the relevant docket entries in the proceeding below ... and (D) other parts of the record to which the parties wish to direct the court's attention." Fed. R. App. P. 30(a)(1) (emphasis added). Further, under our Local Rules, the appellant must "designate a record on appeal that is sufficient for considering and deciding the appellate issues." 10th Cir. R. 10.3(A) (emphasis added). Specific to the context of an appeal from the grant of summary judgment, an appellant must file an appendix that includes "all the materials considered by the district court." Burnett v. Sw. Bell Tel., L.P. , 555 F.3d 906, 908-09 (10th Cir. 2009) (quoting 16A Charles Alan Wright, Arthur R. Miller, Edward H. Copper & Catherine T. Struve, Federal Practice & Procedure § 3956.1, at 627-28 (4th ed. 2008) ). Counsel for Appellants failed to satisfy their most basic duties under these rules. Although the Appellants challenge several of the district court's conclusions as contrary to the evidence presented at summary judgment, the appendix submitted by Appellants includes very few of the evidentiary documents considered and relied on by the district court when reaching its conclusions. Despite the fact-intensive nature of a case featuring ADA claims, the appendix submitted by Appellants contains a mere 120 pages of material. Of those 120 pages, seventy-five pages comprise the district court docket sheet and opinion. Another sixteen pages of the appendix consist of Appellants' complaint. And while Appellants were required to include these three items in their appendix, accounting for the pages the three items spanned, Appellants submitted a mere thirty-nine pages of evidence to support their arguments on appeal and their four different claims for relief. Materials notably absent from the appendix include (1) any of the job postings that listed the qualifications for the positions to which Appellants applied; (2) the deposition testimony of Ms. Artzer-BNSF's Federal Rule of Civil Procedure 30(b)(6) expert and the hiring manager for most or all of the positions-who discussed the qualifications for the positions to which Appellants applied; (3) evidence demonstrating that Appellants were qualified for many of the positions to which they applied; (4) evidence related to Appellants' medical conditions and ability/inability to work outdoors; and (5) any of the at least two and a half years' worth of communications from MEH to Appellants regarding training and job opportunities. While the omissions of pertinent materials from the appendix is problematic, it is even more troubling that counsel appears to have cherry-picked the evidence most favorable to Appellants for inclusion in the appendix. Counsel's self-serving selection of appendix materials forced BNSF to choose between (1) proceeding on an appendix with materials only favorable to Appellants with the hope this court would summarily affirm the district court's decision based on the deficient appendix or (2) submitting a supplemental appendix with the proper materials, not only shouldering the expense of compiling a proper appendix but also decreasing the chances the court would summarily affirm the district court's decision. BNSF admirably chose the latter option, providing an appendix that contains most of the evidence necessary to review the district court's decision. In responding to BNSF's argument that their appendix was deficient, Appellants advanced the position that their oversight was unimportant because this court often overlooks the rules governing the appendix. But the rules governing the required contents of the appendix "are not empty gestures," Travelers Indem. Co. v. Accurate Autobody, Inc. , 340 F.3d 1118, 1121 (10th Cir. 2003), and "[a]n appellant who provides an inadequate record does so at his peril," Dikeman v. Nat'l Educators, Inc. , 81 F.3d 949, 954 (10th Cir. 1996). While we are permitted to look at the record as a whole, including the supplemental appendix submitted by BNSF, nothing requires us to look past the appendix submitted by Appellants. See Milligan-Hitt v. Bd. of Trs. of Sheridan Cty. Sch. Dist. No. 2 , 523 F.3d 1219, 1231 (10th Cir. 2008) ("[W]e have no obligation to go further and examine documents that should have been included, and we regularly refuse to hear claims predicated on record evidence not in the appendix."); see also 10th Cir. R. 10.3(B) ("The court need not remedy any failure by counsel to designate an adequate record. When the party asserting an issue fails to provide a record sufficient for considering that issue, the court may decline to consider it." (emphasis added) ); 10th Cir. R. 30.1(B)(3) ("The court need not remedy any failure of counsel to provide an adequate appendix."). That said, our cases addressing deficiencies in the appendix submitted by an appellant define a guiding principle regarding enforcement of our rules that we choose to apply here. Where an appendix is generally deficient but the materials provided by the appellant permit us to reach a firm and definite conclusion regarding the merits of an individual argument or claim within the appeal, we often will, but need not, address the argument or claim. Where, however, we are forced to venture a guess as to the merits of an argument or claim, even "an informed guess," we will summarily affirm the district court's judgment. See Travelers Indem. Co. , 340 F.3d at 1120 (noting, in face of deficient record on appeal, an "unwilling[ness] to reverse the decision of the district court based on a guess-even what we may think to be an informed guess"); Tilton , 115 F.3d at 1474 ("Because the appellant's appendix is insufficient to permit assessment of this claim of error, we must affirm."); see also Chasteen v. UNISIA JECS Corp. , 216 F.3d 1212, 1221-22 (10th Cir. 2000) (relying on 10th Cir. R. 30.1(A)(1) and Fed. R. App. P. 10(b)(2) to affirm grant of summary judgment where appellant failed to submit adequate appendix). In applying these principles here, we alternatively summarily affirm the district court's judgment on portions of claims where the evidence presented in the appendix submitted by Appellants is insufficient to reach a firm and definite conclusion on an issue. Additionally, because we conclude that counsel's failings constitute a clear violation of both the language and spirit of the rules governing the appendix, we deem this to be a situation where additional repercussions are appropriate. First, we have long held that where a party submits an appendix that does not comply with our local rules, the court may disallow recovery of appellate costs, under Federal Rule of Appellate Procedure 39(a), relative to that appendix. Saulsbury Oil Co. v. PhillipsPetroleum Co. , 142 F.2d 27, 40 (10th Cir. 1944). Second, in situations, as here, where an appeal results in the partial affirmance and partial vacatur of a district court's decision, Federal Rule of Appellate Procedure 39 gives the appellate court discretion to tax costs against one party or the other party. Exxon Valdez v. Exxon Mobil , 568 F.3d 1077, 1081 (9th Cir. 2009) ; see also Fed. R. App. P. 39(a)(4) ("[I]f a judgment is affirmed in part, reversed in part, modified, or vacated, costs are taxed only as the court orders ." (emphasis added) ). Employing our discretion, we (1) preclude Appellants from recovering any appellate costs and (2) permit BNSF to recover all of its appellate costs, including costs related to the supplemental appendix. See Ferrero U.S.A., Inc. v. Ozak Trading, Inc. , 952 F.2d 44, 50 & n.4 (3d Cir. 1991) (shifting appellate costs to prevailing appellant because appellant failed to comply with rules governing appendix), abrogated on other grounds by Octane Fitness, LLC v. Icon Health & Fitness, Inc. , 572 U.S. 545, 134 S.Ct. 1749, 188 L.Ed.2d 816 (2014) ; Blue Pearl Music Corp. v. Bradford , 728 F.2d 603, 607 n.7 (3d Cir. 1984) (shifting costs for supplemental appendix to prevailing appellant because appellant submitted appendix that did not comply with rules). In accordance with Federal Rule of Appellate Procedure 39(d)(1), BNSF shall have fourteen days from the entry of judgment to seek its appellate costs. Having addressed the issues raised by Appellants' deficient appendix, we now turn to the merits of the claims properly before us on appeal. We begin with Appellants' ADA discrimination claim. We then consider the Appellants' ADA failure to accommodate claim. Next, we address Appellants' retaliation claims under the ADA and the FRSA. With respect to each claim, we analyze each unsuccessful job application with respect to each Appellant separately. 3. ADA Discrimination Claim a. Standard governing claim & burden of proof framework Under the ADA, "[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring ... of employees ... and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). In the absence of direct evidence of discrimination, a court uses the McDonnell Douglas burden-shifting framework to evaluate an ADA discrimination claim premised on disparate treatment. Hawkins v. Schwan's Home Serv., Inc. , 778 F.3d 877, 883 (10th Cir. 2015). The first step of the McDonnell Douglas burden-shifting framework requires the plaintiff to establish a prima facie case of discrimination by showing (1) "that he is disabled within the meaning of the ADA"; (2) that he is qualified for the job held or desired; and (3) "that he was discriminated against because of his disability." Kilcrease v. Domenico Transp. Co. , 828 F.3d 1214, 1218-19 (10th Cir. 2016). Below, BNSF conceded that, for purposes of summary judgment, Appellants satisfied the first element of a prima facie case. But BNSF challenged whether Appellants submitted sufficient evidence to satisfy the second and third elements of a prima facie case. Relative to the second element, the ADA defines "qualified individual" as "an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). To demonstrate that he was a qualified individual, a plaintiff must first establish that he had "the requisite skill, experience, education and other job-related requirements of the employment position." Tate v. Farmland Indus., Inc. , 268 F.3d 989, 993 (10th Cir. 2001) (quoting 29 C.F.R. § 1630.2(m) ). Second, he must establish that he can perform the "essential functions" of the position. See id. When determining what functions are essential to a position, "consideration shall be given to the employer's judgment ... and if an employer has prepared a written description before ... interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job." 42 U.S.C. § 12111(8). Based on this statutory instruction, courts "evaluating whether a job requirement is essential ... place considerable weight on an employer's judgment concerning a particular job's essential functions." Kilcrease , 828 F.3d at 1221-22 (internal quotation marks omitted); see 29 C.F.R. § 1630.2(c)(3) (identifying "[t]he employer's judgment as to which functions are essential" as evidence of "whether a particular function is essential"). Likewise, "[b]ecause it is the employer's role to describe the job and functions required to perform that job, we will not second guess the employer's judgment when its description is job-related, uniformly enforced, and consistent with business necessity." Id. at 1222 (internal quotation marks omitted). The deference provided to employers regarding what functions are essential, however, is not limitless, as "an employer may not turn every condition of employment which it elects to adopt into a job function, let alone an essential job function." Hawkins , 778 F.3d at 889 (quotation marks omitted); see 29 C.F.R. § 1630.2(n)(1) ("The term 'essential functions' does not include the marginal functions of the position."). Finally, if the employer presents "evidence that a job function or requirement is essential, the plaintiff bears the burden to dispute that evidence or otherwise show that the function or requirement is nonessential." Kilcrease , 828 F.3d at 1222. Turning to the third element of a prima facie case, our inquiry focuses on whether the circumstances surrounding the adverse employment action "give rise to an inference that the [action] was based on [the plaintiff's] disability." Smothers v. Solvay Chems., Inc. , 740 F.3d 530, 544 (10th Cir. 2014). A plaintiff may establish an inference of discrimination through (1) "actions or remarks made by decisionmakers that could be viewed as reflecting a discriminatory animus," (2) "preferential treatment given to employees outside the protected class," (3) "a pattern of recommending the plaintiff for positions for which she is not qualified [or over-qualified]," and (4) a "failure to surface plaintiff's name for positions for which she is well-qualified." Plotke v. White , 405 F.3d 1092, 1101 (10th Cir. 2005) (quoting Chertkova v. Conn. Gen. Life Ins. , 92 F.3d 81, 91 (2d Cir. 1996) ). The mere fact that the plaintiff was qualified for a position but the employer selected another qualified individual who was not a member of plaintiff's protected class is insufficient to establish an inference of discrimination. See Olson v. Philco-Ford , 531 F.2d 474, 478 (10th Cir. 1976) (concluding that evidence of employer selecting qualified man over qualified woman did not establish inference of discrimination for prima facie case). Instead, the inference of discrimination element of the prima facie case "requires the plaintiff to present some affirmative evidence that disability was a determining factor in the employer's decision." Morgan v. Hilti, Inc. , 108 F.3d 1319, 1323 (10th Cir. 1997) (emphasis added). The burden of production placed on the plaintiff relative to the inference of discrimination element, however, "is not onerous." Id. (internal quotation marks omitted). If the plaintiff advances a prima facie case of discrimination, the burden shifts to the employer to articulate a "legitimate, nondiscriminatory reason" for not hiring the plaintiff. McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If the employer articulates a satisfactory reason, the burden shifts back to the plaintiff to demonstrate that the employer's stated reason is a pretext for discrimination. DePaula v. Easter Seals El Mirador , 859 F.3d 957, 970 (10th Cir. 2017). "A plaintiff may show pretext by demonstrating the proffered reason is factually false, or that discrimination was a primary factor in the employer's decision." Id . (internal quotation marks omitted). "This is often accomplished by revealing weakness, implausibilities, inconsistencies, incoherences, or contradictions in the employer's proffered reason, such that a reasonable fact finder could deem the employer's reason unworthy of credence." Id . (internal quotation marks omitted). b. Application of standard & framework i. Mr. Lincoln 1. Clerk position On August 1, 2012, Mr. Lincoln applied for the position of General Clerk-Administrative. BNSF did not select him for the position on the ground that other candidates were more qualified. At summary judgment, BNSF argued that Mr. Lincoln was not qualified for the position and that not being the most qualified candidate, rather than his disability, motivated the decision to not select him as a clerk. The district court concluded that while a genuine issue of material fact existed as to whether Mr. Lincoln was qualified for the position, Mr. Lincoln failed to advance sufficient evidence permitting an inference of discrimination or demonstrating BNSF's reason for not selecting him was a pretext for discrimination. On appeal, Mr. Lincoln challenges both of the district court's adverse conclusions. Because Mr. Lincoln failed to advance sufficient evidence demonstrating BNSF's reason for not selecting him-that other applicants were more qualified-was a pretext for discrimination, we affirm the district court's judgment on this ground without considering whether Mr. Lincoln advanced sufficient evidence to establish an inference of discrimination. The "basic qualifications" listed in the posting for the General Clerk-Administrative position included (1) typing twenty-five words per minute with thirty-five words per minute preferred; (2) "[m]inimum of 1 year of verifiable training and/or work experience in an administrative function within an office environment"; and (3) "[m]inimum of 1 year of verifiable training and/or work experience resolving internal and/or external customer issues via telephone and/or email correspondence." BNSF App'x at 775-76. At the time of his application, Mr. Lincoln typed at twenty-six words per minute. It is not apparent from the appendix submitted by Appellants that Mr. Lincoln had any work experience in an office environment or that he had a year of training or work experience resolving customer issues. Furthermore, many of the resumes for the applicants for clerk positions reflected a Masters of Business Administration or status as a Certified Public Accountant; meanwhile, Mr. Lincoln had not obtained a four-year college degree. Therefore, even if Mr. Lincoln could convince a jury he was qualified for the position, Mr. Lincoln, at most, barely met the minimum criteria for the position and was not as qualified as other applicants. Thus, Mr. Lincoln fails to establish there was anything false, weak, implausible, inconsistent, or incoherent about BNSF's proffered reason for not selecting him for the General Clerk-Administrative position. Cf. DePaula , 859 F.3d at 970 (stating bases for establishing pretext). 2. Shop positions a. Exhausted positions The district court considered the merits of Mr. Lincoln's ADA discrimination claim as to six shop positions: (1) Mechanical Shop Laborer-applied for July 19, 2012; (2) Pipefitter-applied for August 1, 2012; (3) Carman-Railcar Repair-applied for September 26, 2012; (4) Mechanical Shop Laborer-applied for November 1, 2012; (5) Pipefitter-applied for November 1, 2012; and (6) Carman-Railcar Repair-applied for November 1, 2012. Each of these shop positions was partially or primarily performed in Building 12 of BNSF's Topeka, Kansas, railyard. The district court concluded that working outside was an essential job function for each shop position such that Mr. Lincoln was not qualified for any of the positions. The district court supported this conclusion with three premises. First, while Building 12 was a partially climate controlled structure, it had doors the size of a locomotive that were always open, potentially creating outdoor-like conditions in Building 12. Second, even if Building 12 qualified as indoors, up to 10% of the work for each position was performed outside of Building 12, and the statements from Mr. Lincoln's medical professional restricted him from working outdoors. Third, no reasonable accommodation existed to permit Mr. Lincoln to perform the shop positions because the shop positions entailed outdoor work. Thus, the district court determined that Mr. Lincoln failed to satisfy the second element of a prima facie case of discrimination relative to the shop positions-that he was qualified for any of the positions. Alternatively, the district court concluded that even if Mr. Lincoln established a prima facie case of discrimination, he failed to sustain his burden at the third step of the McDonnell Douglas burden-shifting framework because he did not demonstrate that BNSF's reasons for not selecting him, primarily that he was not the best qualified candidate, were a pretext for discrimination. On appeal, Mr. Lincoln challenges both of the district court's bases supporting summary judgment. To resolve this issue, we analyze each of the shop positions to which Mr. Lincoln applied. i. Carman-Railcar Repair positions [1] Qualified We conclude that Mr. Lincoln advanced sufficient eviden