The full case caption appears at the
end of this opinion. ORDER AND JUDGMENT
[FOOTNOTE *] After examining the briefs and appellate record, this panel has determinedunanimously to grant the parties’ request for a decision on the briefs without oralargument.
See Fed.�R.�App.�P. 34(f); 10th Cir. R. 34.1(G). Thecase is thereforeordered submitted without oral argument. Plaintiff-appellant Donald McVarish appeals from summary judgmentgranted in favor of defendant-appellee New Horizons Community Counseling andMental Health Services, Inc. on his claims brought pursuant to Title I of theAmericans with Disabilities Act, 42 U.S.C. �� 12101-17 (“ADA”), and from alater summary judgment granted in favor of defendant on his claims broughtunder the Family Medical Leave Act, 29 U.S.C. �� 2601-54 (“FMLA”). Ourjurisdiction arises under 28 U.S.C. � 1291, and we affirm. We review both grants of summary judgment
de novo, applying the samestandard employed by the district court under Rule 56(c) of the Federal Rules ofCivil Procedure.
See Riley v. Brown & Root, Inc., 896 F.2d 474, 476 (10thCir.1990). “We must consider factual inferences tending to show triable issues in thelight most favorable to the existence of those issues.”
Id. I. The ADA claims To state a prima facie case under the ADA, plaintiff must exhibit that
(1) he suffers from a “disability” as defined by the statute; (2) he is a “qualifiedindividual,” i.e., that he is able to perform the essential functions of the job, withor without reasonable accommodation; and (3) he suffered an adverseemployment action because of the disability. See Morgan v. Hilti, Inc., 108 F.3d1319, 1323 (10th Cir. 1997). The ADA defines “disability” as
(A) a physical or mental impairment that substantially limits one ormore of the major life activities of such individual; [or]
. . . .
(C) being regarded as having such an impairment.
42 U.S.C. � 12102(2). “Major life activities” is defined as “functions such as . . . working.” 29 C.F.R. � 1630.2(i). With respect to working,
[t]he term “substantially limits” means significantly restricted in theability to perform either a class of jobs or a broad range of jobs invarious classes as compared to the average person having comparabletraining, skills and abilities. The inability to perform a single,particular job does not constitute a substantial limitation in the majorlife activity of working.
29 C.F.R. � 1630.2(j)(3)(i).
The key question presented on appeal is whether in October 1994 plaintiffwas “disabled” such that he was protected by the ADA. In his deposition,plaintiff stated that his disabilities were a “chronic heart condition,” strokes thatoccurred in February 1995 and January 1996, and a perception by his supervisorthat he had a mental impairment in June 1995. Appellant’s App., McVarish Dep.at 7. It is undisputed that plaintiff suffered a heart attack in 1984 but returned towork and worked without any significant problem until July of 1994, when one ofhis coworkers, Mahala Ellington, was made his supervisor. He demanded herremoval as his supervisor in October of 1994 as a “reasonable accommodation”under the ADA, stating that he suffered stress under her supervision. He claimsthat denial of this “accommodation” was an adverse employment action inviolation of the ADA. Plaintiff’s brief lists other adverse employment actions as(1) a threatened termination for plaintiff’s absence from a scheduled meeting inOctober 1994; (2) Ms. Ellington’s alleged characterization of him as mentally illin June 1995; (3) a negative evaluation; and (4) bypassing him in 1995 indecisions that had been part of plaintiff’s job description. See Appellant’s Br.at�12-13. Plaintiff testified that, at the time he demanded Ms. Ellington’s removal ashis supervisor, “[g]oing to work [was] not a problem. Going to work andcontacting Mahala on a daily basis and talking with her about her perceptions ofmy job and that kind of thing made it difficult for me.” Appellant’s App.,McVarish Dep. at 47. He testified that defendant did not take any adverse actionagainst him because of his physical impairments except for failing to removeMs.�Ellington as his supervisor. See id. at 81-82. It is undisputed that inOctober1994 defendant suggested that plaintiff take twelve paid weeks off to attend astress management program that defendant would pay for under its EAP program. Plaintiff refused this suggestion. Ms. Ellington was replaced by another person asplaintiff’s supervisor in October 1995, and plaintiff was placed on permanentdisability in 1996 after his second stroke. Plaintiff’s claim that defendant perceived that he had a mental impairmentsuch that he was a “qualified individual with a disability”as defined by the ADAis based upon the fact that in June 1995 Ms. Ellington asked a psychiatrist whoworked at New Horizons for advice on how to negotiate with plaintiff and askedwhether the psychiatrist thought that plaintiff, who was very angry, presented adanger to himself or to others at that time. See Appellant’s Br. at 8-9 & Ex. 2-4. We have carefully reviewed the record presented to the district court. Forthe reasons stated in the court’s memorandum opinion, we agree that, as a matterof law, plaintiff has failed to demonstrate that in October 1994 he was a”disabled” individual within the meaning of the ADA. See Mem. Op. filedOct.�29, 1997 at 5-8; cf. Siemon v. AT&T Corp., 117 F.3d 1173, 1176(10th Cir.1997) (holding that plaintiff suffering from mental impairment preventing himfrom working under a few supervisors was not disabled under the ADA). He alsofailed to demonstrate that defendant regarded him as having a mental impairmentthat substantially limited his ability to work. As the district court noted, Plaintiff has presented no evidence that Defendant changedPlaintiff’s job duties or took any other adverse employment actionbased on a perception that he suffered a mental disability. Mem. Op. filed Oct. 29, 1997, at 8. Because plaintiff failed as a matter of law toestablish that in 1994 he was an individual with a disability as defined under thestatute, summary judgment was properly granted. See Siemon, 117 F.3d at 1175(stating that if plaintiff suffers no “disability” as defined by the statute,employer’s behavior is not actionable under the ADA).
II. The FMLA claims The memorandum opinion issued by the district court on June 5, 1998, fully sets out plaintiff’s assertions and presents a thorough analysis andapplication of the relevant law. This court has reviewed the record, and, for thereasons stated in the district court’s memorandum opinion, is convinced that thecourt properly granted summary judgment to defendant on plaintiff’s FMLAclaims. The judgment of the United States District Court for the
Western Districtof�Oklahoma is
AFFIRMED. Entered for the Court Deanell Reece Tacha Circuit Judge :::FOOTNOTES:::
FN* This order and judgment is not bindingprecedent, except under thedoctrines of law of the case, res judicata, and collateral estoppel. The courtgenerally disfavors the citation of orders and judgments; nevertheless, an orderand judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
DONALD McVARISH, Plaintiff-Appellant, v. NEW HORIZONS COMMUNITY COUNSELING AND MENTAL HEALTH SERVICES INC., corporation, Defendant-Appellee. No. 98-6284 United States Court of Appeals for the Tenth Circuit (D.C. No. 96-CV-844) (W.D. Okla.) May 4, 1999 Before TACHA, BARRETT, and MURPHY, Circuit Judges.
