It has long been recognized in EEO law that an employee is not required to make a futile gesture to have an otherwise hostile-employer hire, rehire, promote or otherwise confer some benefit in order to bring a claim. The plaintiff invokes this doctrine in the present case, where he was informed not to bother attending roll calls for reemployment until he obtained a medical release with no work restrictions, arguably in violation of the ADA. Can he prevail in this case? Under the particular facts of this case, the Ninth Circuit says "no." In an unpublished opinion, the Tenth Circuit upholds (over a dissent) eBay's mandatory arbitration clause.