Return to Selected Americans With Disabilities Act/504 Cases Court's Index

Ellenberg v. New Mexico Military Institute, --- F.3d ---- (3/2007) Under our precedent, parties are precluded from bringing claims under the ADA and the RA that are educational in nature if they have failed to exhaust IDEA's administrative procedures, and relief for their injuries is available under the IDEA. Although we hold that plaintiffs have failed to exhaust IDEA's administrative procedures, they are unable to obtain relief under the IDEA for their pure discrimination claims brought pursuant to the RA and ADA, and thus are not barred from bringing these claims in federal court at this time. The district court's sole basis for granting summary judgment to NMMI on these claims was that plaintiffs' IDEA claim failed. Because plaintiffs' claims under the RA and ADA are separate and distinct from the IDEA claim, the district court's ruling in favor of NMMI on this basis was in error.

E.E.O.C. v. Heartway Corp., 466 F.3d 1156 (10/2006) Janet Edwards, who has hepatitis C, was fired from her job at a nursing home.  The Equal Employment Opportunity Commission ("EEOC") thereafter sued the nursing home, claiming that Edwards's termination violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101Ä213.  After the district court partially granted (with respect to the EEOC's punitive damages claim) and partially denied the nursing home's motion for judgment as a matter of law, a jury returned a verdict in favor of the EEOC.  In this appeal, we conclude that the district court did not err in partially denying the nursing home's motion for judgment as a matter of law but that it should not have granted the motion with regard to punitive damages.

McWilliams v. Jefferson County, 463 F.3d 1113 (9/2006) Plaintiff has not produced evidence that she was substantially impaired or significantly restricted in any major life activity. Although  she attests that her intermittent depressive episodes caused her difficulty in sleeping and getting along with her co-workers, she has not shown how these limitations prevented her from performing her job “or that she is unable to perform any of the life activities completely.” Croy, 345 F.3d at 1204 (finding plaintiff suffering from multiple sclerosis not disabled under meaning of ADA). Consequently, we agree with the district court's grant of summary judgment to Defendant on this claim.

Toomer v. City Cab, 443 F.3d 119 (4/2006) Plaintiffs-Appellants Barbara Toomer and the Disabled Rights Action Committee (collectively, “DRAC”) appeal from the district court's grant of summary judgment in favor of Defendants-Appellees City Cab Company, Inc., Ute Cab Company, Inc., and Yellow Cab Drivers Association Inc. (collectively, “Cab Companies”), arising from DRAC's claim that the Cab Companies operated in violation of Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181-12189. DRAC sought to require the Cab Companies to provide service to powered wheelchair users, contending that the Cab Companies were using new vehicles that were required to be ADA compliant. The district court concluded there was no ADA violation because the term “new vehicle” meant vehicles with no prior use, not, as DRAC contended, vehicles manufactured after the effective date of the ADA. Toomer v. City Cab Co., 2005 WL 67091 (D.Utah Jan.10, 2005). We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

Bauer v. Muscular Dystrophy Ass'n, Inc., 427 F.3d 1326 (11/2005) The fact that MDA has previously allowed other volunteers to undertake lifting responsibilities that otherwise should have been performed by Plaintiffs does not necessarily mean that MDA incurs a continuing and indefinite obligation to do so in the future. In light of the district court's finding that lifting was an essential function for Plaintiffs, and Plaintiffs' previous inability to fulfill that function was diverting significant resources from the purpose for which the camp was intended, we cannot conclude that Title III requires the MDA to simply continue its past practice of allowing Ms. Bauer and Ms. Stolz to perform the duties they are capable of performing, with other essential responsibilities they cannot perform being assigned to other volunteers. For these reasons, we cannot hold that MDA violated Title III of the ADA when it began enforcing its "lift and care for a camper" rule, even though such enforcement denied Plaintiffs the opportunity to participate as volunteer counselors. Accordingly, in light of our conclusion that MDA's eligibility criteria did not amount to unlawful discrimination under the ADA, the judgment of the district court is AFFIRMED.

Kelly v. Metallics West, Inc., 410 F.3d 670 (6/2005) Plaintiff-appellee Beverly Kelly sued her former employer defendant-appellant Metallics West, Inc. (Metallics West), alleging unlawful discrimination and retaliation under the Americans With Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213(ADA). The case was tried to a jury, which entered a verdict for Kelly, finding that Metallics West had violated the ADA by refusing to permit Kelly to return to work without supplemental oxygen, and by terminating her employment in retaliation for requesting the accommodation of returning to work with supplemental oxygen. The jury awarded compensatory damages of $50,000 to Kelly. Metallics West argues that the judgment against it must be reversed for two reasons: (1) the ADA did not require it to provide Kelly, an employee "regarded as disabled" but not actually disabled, with reasonable accommodation; and (2) the ADA did not provide Kelly with a remedy of compensatory damages for a retaliation claim. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, and basing our holding on the plain language of the ADA, we AFFIRM

Praseuth v. Rubbermaid, Inc., 406 F.3d 1245 (5/2005) Recognizing that our review begins and ends with a determination of whether there was evidence from which a jury could reasonably have found in favor of Ms. Praseuth on this fact-bound issue, we conclude that there was sufficient evidence from which the jury could have determined that knife-use was not required in 50% or more of the positions on the production line, and that Ms. Praseuth could have, therefore, rotated into 50% of the positions. Accordingly, we find sufficient evidence to support a jury finding that despite the limitations on her knife-use, Ms. Praseuth was qualified for the job because she could perform the job's essential functions, including rotation, even without accommodation. Ms. Praseuth testified that she experienced a variety of depressive symptoms including an inability to eat and sleep, and that she had thoughts of suicide. Joseph Westermeyer, M.D., a psychiatrist, testified that Ms. Praseuth suffered from a major depressive disorder which caused her to lose sleep and have suicidal thoughts. We find substantial evidence to support Ms. Praseuth's $50,000 award for emotional pain and mental anguish. See, Baty v. Willamette Industries, Inc., 172 F.3d 1232, 1244 (10th Cir. 1999) (damages for mental anguish upheld based on plaintiff's assertions and psychological expert's testimony).

Fitzgerald v. Corrections Corp. of America, 403 F.3d 1134 (4/2005) Fitzgerald's ADA and Rehabilitation Act claims are also on tenuous grounds. In addition to ruling that Fitzgerald did not receive substandard medical *1144 care, the District Court further held, with respect to Fitzgerald's ADA claim: "it is well settled that the ADA does not provide a private right of action for substandard medical treatment." Order (1st), Aplt.App. at 30. The District Court did not comment on the Rehabilitation Act, but for practical purposes the requirements to state a claim under either statute are identical here.
Under either the ADA or the Rehabilitation Act, Fitzgerald is obligated to show that he was "otherwise qualified" for the benefits he sought and that he was denied those "solely by reason of disability." See, e.g., Johnson by Johnson v. Thompson, 971 F.2d 1487, 1492 (10th Cir.1992), cert. denied, 507 U.S. 910, 113 S.Ct. 1255, 122 L.Ed.2d 654 (1993). Further, we have held that "the term otherwise qualified cannot ordinarily be applied 'in the comparatively fluid context of medical treatment decisions without distorting its plain meaning.' " Johnson, 971 F.2d at 1493-94. As to whether treatment was denied "solely" by reason of disability, the Second Circuit has stated: "Where the handicapping condition is related to the condition(s) to be treated, it will rarely, if ever, be possible to say ... that a particular decision was 'discriminatory.' " United States v. University Hospital, 729 F.2d 144, 157 (2nd Cir.1984) (Rehabilitation Act). Several circuits have expressly concluded that neither the ADA nor the Rehabilitation Act provide remedies for alleged medical negligence. See Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir.1996) ("ADA does not create remedy for medical malpractice"); Grzan v. Charter Hospital of Northwest Indiana, 104 F.3d 116, 121, 123 (7th Cir.1997) (affirming district court's dismissal under Fed.R.Civ.P. 12(b)(6) of plaintiff's section 504 claim because "section 504 [which 'is materially identical to the ADA'] does not provide a federal malpractice tort remedy" and allegations of discriminatory medical treatment do not fit into the four-element framework required by Section 504.).

Lanman v. Johnson County, Kansas, 393 F.3d 1151 (12/2004) Assuming interacting with others is a recognized major life activity, "`mere trouble getting along with co-workers is not sufficient to show a substantial limitation.'" Steele, 241 F.3d at 1255 (citing McAlindin v. County of San Diego, 192 F.3d 1226, 1235 (9th Cir. 1999)). Thus, Ms. Lanman would have to show she was perceived by her employer as being unable to interact with people in general on a regular basis. Id. The interactions she experienced with some of her co-workers do not satisfy this standard. Ms. Lanman had been working for the County for over 13 years. In that time, the only recorded problems between her and her co-workers occurred in the Spring of 2001. This does not establish a pattern of failure to interact on a regular basis. Had the County perceived her as substantially limited in her ability to interact, it would not have reassigned her to a position where she was required to work directly with inmates. Notifying other officers that she was returning to work and allowing them to voice their concerns at most shows she was viewed as undesirable to work with by some of her co-workers. The evidence before us is simply insufficient to show that she was regarded as substantially limited in interacting with people in general. Ms. Lanman also argues she was perceived as substantially limited in the activity of thinking. Again, assuming this is a recognized major life activity, the County's behavior does not support this conclusion. Because Ms. Lanman has failed to establish that she was regarded as substantially impaired with respect to a major life activity, she is not disabled within the meaning of the ADA. Therefore, we do not address whether she was subjected to a hostile work environment or whether she was constructively discharged. Establishing a disability within the meaning of the Act is a threshold requirement for all ADA claims. Steele, 241 F.3d at 1252. Ms. Lanman has failed to cross this threshold.

McKenzie v. Benton, 388 F.3d 1342 (11/2004) Thus "direct threat" is addressed under "Defenses." However, the statute further states that "[t]he term `qualification standards' may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace." Id. §12113(b). Moreover the plaintiff had demonstrated clearly reckless use of her department issued off duty firearm when she fired six shots into her father's grave. McKenzie's irresponsible conduct could have tragic consequences if it reoccurred while she was on duty. In addition, evidence was presented at trial of McKenzie engaging in violent conduct which had the potential to be a direct threat to others and which, in fact, led to physical harm to herself. As a result, not only was the occupation in question "inherently dangerous," as stipulated by the parties, but McKenzie demonstrated particularly reckless and dangerous conduct. We hold that under these circumstances, the district court did not err by instructing the jury that the burden rested on the plaintiff to prove that she did not pose a "direct threat" to others in the workplace.

Tandy v. City of Wichita, 380 F.3d 1277 (8/2004) A number of "testers" from outside Wichita sued on a number of issues involving wheelchair access, braille scvhedules, lack of TDD, etc. Defendant voluntarily complied, howeve, appeals court maintained district court injunction and availability of damages for named plaintiffs. Decision to long to summarize properly.

Bartee v. Michelin North America, Inc., 374 F.3d 906 (6/2004) Defendant-Appellee Michelin North America ("Michelin") terminated Plaintiff-Appellant Tony Bartee from his job as a foreman at its Ardmore, Oklahoma factory. After his termination, Mr. Bartee brought suit pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., alleging that Michelin failed to reasonably accommodate his disability and that it wrongfully terminated his employment. On appeal, Mr. Bartee challenges the District Court's back-pay award and its order barring a punitive-damages instruction. On cross-appeal, Michelin contests the District Court's failure to grant it judgment as a matter of law. we AFFIRM the District Court's refusal to submit punitive damages to the jury, AFFIRM the District Court's denial of Michelin's motion for judgement as a matter of law, REVERSE the calculation of damages, and REMAND for further findings of fact and a determination of equitable relief consistent with this opinion

Bones v. Honeywell Intern., Inc., 366 F.3d 869 (4/2004) Even assuming, arguendo, that Bones can prove the other elements of a prima facie claim, Bones' ADA claim fails as a matter of law because she did not establish that her termination was based on her alleged disability. To establish such a causal connection, Bones must provide some evidence that her disability was a determining factor in Honeywell's decision to terminate her. Hilti, 108 F.3d at 1323. An employee cannot state a cause of action for disability discrimination when her employer terminated her for reasons unrelated to a disability.

McGeshick v. Principi, 357 F.3d 1146 (2/2004) Moreover, the Secretary invited McGeshick to apply for other jobs within the VA, which would indicate that the VA actually did not perceive McGeshick as substantially limited in his ability to perform major life activities. The evidence suggests that the Secretary indeed thought that McGeshick would be able to perform tasks outside of the specific job of housekeeping aid. Because McGeshick failed to present evidence that the Secretary perceived him to be disabled within the meaning of the Rehabilitation Act, he has neither presented a triable issue of fact nor carried his burden to establish a prima facie case. McGeshick's motion for summary judgment was properly denied. The Secretary was entitled to a grant of summary judgment as a matter of law, and we AFFIRM the decision of the district court.

Albert v. Smith's Food & Drug Centers, Inc., 356 F.3d 1242 (1/ 2004) The evidence concerning Albert's reactions to common substances, the limitations on her activities, her multiple hospitalizations, and her frequent trips to the emergency room all support Albert's contention that she doesn't "breathe as well as [other people]" Viewing the evidence in a light most favorable to Albert, we conclude that summary judgment for Smith's was inappropriate on the question of whether Albert was disabled because Albert has raised a genuine issue of material fact as to whether her asthma substantially limits her breathing and thus a major life activity. the material facts of the interactive process remain in dispute in this case. Accordingly, Albert has raised a genuine issue of material fact concerning whether Smith's failed to reasonably accommodate her.

Mason v. Avaya Communications, Inc. 357 F.3d 1114 (1/ 2004) Diane Mason sued her former employer Avaya Communications, Inc. (Avaya) alleging Avaya violated the Americans with Disabilities Act (ADA), 42 U.S.C.  §§ 12101- 12213. Specifically, Mason alleged Avaya failed to accommodate her post traumatic stress disorder by, among other ways, refusing to allow her to work from home. Instead, Avaya terminated Mason because she would not return to work. The district court granted Avaya's motion for summary judgment holding Mason was not a qualified individual with a disability under the ADA because (1) Mason's physical attendance in the workplace was an essential function of her job, and (2) Mason's request for an at- home accommodation was unreasonable. we affirm

Tesh v. U.S. Postal Service, 349 F.3d 1270 (11/2003) At the end of Appellant's case-in-chief, the district court granted judgment for USPS on the accommodation issue pursuant to Fed. R. Civ. P. 50(a). The termination issue went to the jury, which returned a verdict for Appellant and awarded him $25,000. However, the district court vacated this verdict and its prior order denying USPS's motion for summary judgment, and granted judgment as a matter of law for USPS on all claims. We affirm the trial court's judgment as a matter of law in favor of USPS on both the discrimination and the accommodation claims.

Chaffin v. Kansas State Fair Board, 348 F.3d 850 (10/2003) Plaintiff-Appellees are disabled persons who have attended the Kansas State Fair in the past, and who plan to attend future fairs. They alleged intentional discrimination and violation of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-12134, by Defendants-Appellants the State of Kansas, the Kansas State Fair Board, its members, and the general manager of the fair. Plaintiffs sought injunctive relief against the Kansas State Fair for alleged failure to comply with the ADA and various of the federal regulations promulgated thereunder, including the Americans with Disabilities Act Accessibility Guidelines (ADAAG), 28 C.F.R. pt. 36, app. A. On cross motions for summary judgment, the district court granted the Plaintiffs' motion for partial summary judgment directing all of the Defendants except the State of Kansas (hereinafter the Fair) to prepare a self-evaluation and a transition plan pursuant to 28 C.F.R. §§ 35.105 and 35.150. See U.S. Dep't of Justice, ADA Title II Technical Assistance Manual §§ II-8.200 to .300, http://www.usdoj.gov/crt/ada/taman2.html. Defendants appeal from the district court's order of November 1, 2002. We affirm.

E.E.O.C. v. W.H. Braum, Inc., 347 F.3d 1192 (10/2003) The district court held that because Ms. Willis was barred from individually bringing an ADA claim based on the state statute of limitations, the EEOC was also barred from seeking any monetary relief on her part. The district court therefore limited the EEOC to injunctive relief based on the derivative nature of the EEOC's claim and the doctrine of res judicata. The EEOC is not barred from asserting claims for both individual relief and injunctive relief at this time. An aggrieved employee's conduct "may have the effect of limiting the relief that the EEOC may obtain in court." Waffle House, 534 U.S. at 296. However, Braum has failed to show any conduct on Ms. Willis's behalf that in any way limits the relief the EEOC may seek. Ms. Willis's prior ADA claim was dismissed without prejudice. A "dismissal without prejudice is a dismissal that does not operate as an adjudication upon the merits, and thus does not have a res judicata effect." Satsky v. Paramount Communications, Inc. 7 F.3d 1464, 1468 (10th Cir. 1993) (internal quotations and citations omitted). In addition, based on our above conclusions, because there is no basis for time- barring Ms. Willis, there is no basis for arguing the EEOC is derivatively time- barred. We REVERSE the district court's orders of dismissal in favor of Defendant, VACATE its stay of the case, and REMAND for further proceedings consistent with this opinion.

Croy v. Cobe Laboratories, Inc., 345 F.3d 1199 (10/2003) The district court examined each of the alleged limitations on major life functions and discussed each in turn. Without repeating the analysis conducted by the district court, we agree with the district court that Appellant has not shown the substantial impairment of a life activity. Assuming without deciding that working is a major life activity, Appellant has not shown that her limitations prohibit her from completing her job or that she is unable to perform any of the life activities completely. We are sympathetic with Appellant's impairment and presume that she often experiences the symptoms of multiple sclerosis to the extent that she is often temporarily unable to function as the average person would. However, she has failed to show that she is unable to work. She has merely shown that she has had to take many unscheduled absences. She has not even shown that she was unable to perform her job at an acceptable level. In fact, Appellant claims that she maintained a satisfactory level of job performance such that she should not have received negative performance reviews. Therefore, there does not appear to be any factual issue as to whether Appellant suffers from a substantial limitation of a major life activity.

Brockman v. Wyoming Dept. of Family Services, 342 F.3d 1159 (9/2003) We agree with the district court that "any State reading [42 U.S.C. § 2000d-7(a)(1)] would clearly understand that, by accepting . . . funding, it was consenting to resolve disputes regarding alleged violations of the Act's anti-discrimination provisions in federal court." We therefore adopt the district court's analysis of the Rehabilitation Act claim. Because DFS had good reason to believe at the point that it terminated Ms. Brockman that she might never return to work, Ms. Brockman was not a "qualified individual" under the terms of that Act.

Doebele v. Sprint/United Management Co., 342 F.3d 1117 (8/2003) The district court evaluated the evidence under an erroneous view of the applicable legal standards, and failed to view the record most favorably to Ms. Doebele or to draw reasonable inferences from the evidence in her favor. When examined under the proper standards, the record clearly is sufficient to raise a fact issue as to whether Sprint's reasons for firing Ms. Doebele were pretextual and, significantly, does not contain the requisite "abundant and uncontroverted independent evidence that no discrimination had occurred."

Keirnan v. Utah Transit Authority, 339 F.3d 1217 (8/2003)The regulations do not affirmatively require public transit authorities to carry mobility devices larger than a common wheelchair, regardless of the rider's eligibility. Rather, they state that "[a]ll common wheelchairs and their users shall be transported." 49 C.F.R. § 37.165(b). Since the regulations implementing Title II remain silent of any duty to carry oversized wheelchairs, we cannot hold that the interpretive guidance is plainly erroneous or inconsistent on that ground. Interestingly, Appellant did not raise the argument that refusing to transport her in her oversized mobility device violates the general nondiscrimination obligation for entities providing transportation service. 49 C.F.R. § 37.5(a) states that "[n]o entity shall discriminate against an individual with a disability in connection with the provision of transportation service." Since Appellant "is capable of using that service," there is a possible conflict between 49 C.F.R. § 37.5 and § 37.165. The issue is not focused on or adequately developed for us to decide. Since we are only resolving the issue of a preliminary injunction, Appellant is free to raise this argument at the district court level. For the foregoing reasons, the decision of the district court denying Appellant's motion for a preliminary injunction is AFFIRMED.

Davidson v. America Online, Inc., --- F.3d ---(7/2003)   The district court declined to consider AOL's proffered reasons justifying its hiring policy, holding that "absent evidence of unlawful discrimination or that a policy does not serve a legitimate business purpose, an employer's business judgment is not the province of the federal courts," citing Anderson v. Coors Brewing Co., 181 F.3d 1171, 1176 (10th Cir. 1999). AOL's requirement of voicephone experience for non-voicephone positions may or may not be justified as job-related or a business necessity, but that is a question for a jury to answer with all the available evidence before it. For the foregoing reasons, we hold that summary judgment in favor of AOL was improper as to the issue of whether Davidson is a "qualified individual."

Fisher v. Oklahoma Health Care Authority,  335 F.3d 1175 (7/2003) As we have elaborated, under Olmstead, the failure to provide Medicaid services in a community-based setting may constitute a form of discrimination. Because the OHCA does not allow the plaintiffs to receive services for which they are qualified unless they agree to enter a nursing home, the plaintiffs have presented a genuine issue of material fact as to whether they can prove that the defendants have violated the integration requirement of Title II of the ADA. However, our conclusion that the five-prescription cap may violate the ADA's integration regulation does not end our inquiry, for "[t]he State's responsibility, once it provides community-based treatment to qualified persons with disabilities, is not boundless," Olmstead, 527 U.S. at 603, and states are permitted "to resist modifications that entail a `fundamenta[l] alter[ation]' of the State's services and programs," id. (quoting 28 C.F.R. § 35.130(b)(7)).

Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955 (7/2002)

Schrader v. Fred A. Ray, M.D., PC., 296 F.3d 968 (7/2002) Plaintiff-appellant Alexis Kim Schrader appeals from the district court's order granting summary judgment in favor of defendant-appellee Fred A. Ray, M.D., P.C. ("Ray"), on Schrader's complaint brought pursuant to § 504 of the Rehabilitation Act of 1973, codified at 29 U.S.C. § 794 (the "Rehabilitation Act"). The district court held that Ray is not subject to liability under § 504 because it has less than fifteen employees. In this appeal, we hold that § 504(d) of the Rehabilitation Act, which incorporates the standards of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"), for purposes of determining whether the Rehabilitation Act has been violated, does not incorporate the ADA definition of an "employer," and thus even employers with fewer than fifteen employees are subject to the Rehabilitation Act's requirements so long as they are recipients of federal assistance. We further hold that Ray is not entitled to urge on appeal, as an alternative ground for affirmance, an argument rejected by a magistrate judge in his report and recommendation to which Ray failed to file a timely objection. Accordingly, we REVERSE and REMAND for further proceedings.

Dilley v. SuperValu, Inc., 296F.3d 958 (7/2002) Plaintiff-Appellee and Cross-Appellant Donald Dilley brought suit against Defendant-Appellant and Cross-Appellee SuperValu, Inc., alleging that SuperValu wrongfully terminated him from his job as a truck driver because of a lifting restriction imposed by doctors after Dilley injured his back. The district court rejected SuperValu's request for judgment as a matter of law and allowed the case to go to the jury, which found that SuperValu had unlawfully discriminated against Dilley. SuperValu argues that Dilley's ADA claim fails as a matter of law because he is not a qualified individual under the statute, his requested accommodation was unreasonable, and he refused SuperValu's offered accommodation. SuperValu also challenges the adequacy of the district court's jury instructions. In his cross-appeal, Dilley challenges the district court's reduction of the jury's back pay award, and argues that the district court's dismissal of Dilley's punitive damages claim and denial of his motion for reinstatement were erroneous. We AFFIRM the district court's order in all regards, except for its denial of Dilley's motion for reinstatement. Because the district court based its denial order on an incorrect characterization of the law, we VACATE and REMAND on that issue alone.

 Whitney v. Board of Educ. of Grand County, 292 F.3d 1280 (6/2002)   Whitney, who has been diagnosed as suffering from depression, brought suit alleging that her firing violated, inter alia, the Americans with Disabilities Act (ADA), two state statutes, and state contract law. The defendants in Whitney's suit are the Grand County School District Board of Education ("the School Board") and district superintendent Bill Meador (collectively "the Defendants"). The district court granted the Defendants' motion for summary judgment on all claims, and Whitney appeals. We reverse on the ADA claim as to the School Board and the state statutory claims as to both Defendants, and affirm on the ADA claim as to Meador and the breach of contract claim as to both Defendants.

Garrison v. Baker Hughes Oilfield Operations, Inc., 287 F.3d 955 (4/2002)  A jury awarded Tommy Garrison $3,580.36 under 42 U.S.C. § 12112(d)(3) of the Americans with Disabilities Act for compensatory damages arising from a withdrawn job offer. Mr. Garrison's employer, Baker Hughes Oilfield Operations, Inc., doing business as Centrilift ("Centrilift") now appeals, arguing: (1) there was insufficient evidence to support the verdict; (2) the district court erred in enjoining Centrilift from allowing review of entering employees' workers compensation records by non-medical personnel; (3) the Americans with  Disabilities Act does not provide for compensatory damages under §12112(d)(3); and (4) the district court improperly instructed the jury. Our jurisdiction arises pursuant to 28 U.S.C. § 1291. After careful consideration, we reverse the district court's injunctive judgment and remand for proceedings consistent with this opinion, and we affirm in all other respects.

Bristol v. Board of County Com'rs of County of Clear Creek, 281 F.3d 1148 (2/2002)  This appeal involves several issues arising under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 - 12213. Specifically, we hold, first, that in a case tried to a jury, the court decides whether the plaintiff has identified "impairments" and "major life activities" recognized under the ADA, but that the jury decides whether the plaintiff has demonstrated by a preponderance of the evidence whether the identified impairment "substantially limits" one or more of the identified major life activities such that the plaintiff should be considered "disabled" for purposes of the ADA. Second, we hold that a position is "vacant," for purposes of considering whether an employer has a duty to transfer a disabled employee to that position, see Smith v. Midland Brake, Inc., 180 F.3d 1154, 1175 (10th Cir. 1999) (en banc) (hereinafter, "Midland Brake"), only if the employer knows, at the time the employee asks for a reasonable accommodation, that the job opening exists or will exist in the fairly immediate future. A position is not vacant if, as here, the employer did not know at the time the employee asks for a reasonable accommodation that the position would become vacant in the fairly immediate future, even if it did in fact open up a reasonable time after the employee's request had been made. Third, we hold that the trial court was correct in ruling that Bristol could establish discrimination by showing that the County failed reasonably to accommodate him by reassigning him to a vacant position. Bristol is not required to establish separate proof of discriminatory intent. Fourth, we hold that the district court erred by not allowing the jury to decide whether both the County and the Sheriff are properly treated as Bristol's employers for purposes of this lawsuit.

McBride v. Citgo Petroleum Corp., 281 F.3d 1099 (2/2002)  Plaintiff-Appellant Elizabeth McBride appeals from the district court's order dismissing her Americans with Disabilities Act ("ADA") claim and the district court's order granting summary judgment in favor of Defendant-Appellee CITGO Petroleum Corporation ("CITGO") on her Family and Medical Leave Act ("FMLA") claim. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm the district court's orders.

Tate v. Farmland Industries, Inc., 268 F.3d 989 (10/2001)  Defendant Farmland Industries Inc., employed Plaintiff Charles R. Tate in 1987 to operate a commercial motor vehicle (CMV) hauling propane and other refined fuel products.(1) In 1995, Plaintiff began taking antiseizure medication to control focal seizures, episodes of jerking on the left side of his body. In 1998, Defendant terminated Plaintiff's employment as a CMV operator due to his health condition. According to Defendant, Plaintiff's use of antiseizure medication rendered him physically unqualified to operate a CMV. Following his termination, Plaintiff filed this action against Defendant alleging violations of (1) the Americans With Disabilities Act (ADA), 42 U.S.C. §§ 12101_12213, and (2) the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601_2654. The district court granted summary judgment for Defendant on Plaintiff's ADA claim, and dismissed Plaintiff's FMLA claim for failure to state a cause of action. Plaintiff appeals. We exercise jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand.

Mathews v. Denver Post, 263 F.3d 1164 (8/2001)  John Mathews brought this suit against his employer, the Denver Post, contending that the Post laid him off in violation of the Americans with Disabilities Act, 42 U.S.C. § 12112 (1994), from November 1994 to May 1996. The district court granted summary judgment to the Post, holding that Mathews had not shown he was a disabled person within the meaning of the Act, nor had he shown he was qualified to do his job on the dates in question. We affirm.

Frazier v. Simmons, 254 F.3d 1247 (7/2001)  Mr. Frazier sued Mr. Simmons, his former employer, in his official capacity as Secretary of the Kansas Department of Corrections, for alleged violations of the Americans with Disabilities Act ("Disabilities Act"), 42 U.S.C. §§ 12101 _ 12213. The district court granted Mr. Simmons' motion for summary judgment. The district court, however, denied Mr. Simmons' motion for dismissal, holding Mr. Simmons was not immune from suit under the Eleventh Amendment. Mr. Frazier appeals the district court's grant of summary judgment; Mr. Simmons cross_appeals the denial of his motion to dismiss. Both parties have filed supplemental briefs addressing the effect of Board of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 121 S. Ct. 955 (2001) on the present suit. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the district court's grant of summary judgment in favor of Mr. Simmons on Mr. Frazier's Title I claims, and remand the case to the district court for initial consideration of Mr. Frazier's Title II claims.

Selenke v. Medical Imaging of Colorado, 248 F.3d 1249 (5/2001)  Rose Selenke filed this action against Medical Imaging of Colorado (MIC) (her former employer), alleging violations of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101_12213.(1) Ms. Selenke maintained that MIC failed to reasonably accommodate her sinus disorder, retaliated against her for seeking reasonable accommodation, and then terminated her because of her disability. She also asserted a wrongful discharge claim under Colorado law. The district court granted summary judgment in favor of MIC on all of Ms. Selenke's claims, reasoning that she failed to present sufficient evidence that she suffered from disabilities protected by the ADA or that MIC violated Colorado public policy by terminating her employment. Mr. Selenke now challenges that ruling. She also argues that, even if the district court properly concluded that she did not suffer from ADA_protected disabilities, that conclusion did not warrant summary judgment on her ADA retaliation claim or her wrongful discharge claim under Colorado law. For the reasons set forth below, we assume, without deciding, that Ms. Selenke presented sufficient evidence that she suffered from an ADA_protected disability. Nevertheless, even assuming such a disability, the record does not support Ms. Selenke's contentions that MIC failed to reasonably accommodate her, terminated her employment because of her disability, or retaliated against her because she engaged in activities

Boykin v. ATC/VanCom of Colorado, L.P., 247 F.3d 1061 (4/2001)  Plaintiff Fred L. Boykin appeals from an order of the district court granting summary judgment to defendant ATC/VanCom of Colorado in this action under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101_12213. We affirm.

McKenzie v. Dovala, 242 F.3d 967 (3/2001)  Plaintiff Lorraine "Jade" McKenzie sued her former employer, the Natrona County Sheriff's Office, for an alleged violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101?12213. The United States District Court for the District of Wyoming granted summary judgment in favor of defendant, and plaintiff appealed. Exercising jurisdiction under 28 U.S.C. § 1291, we conclude McKenzie made out a prima facie case of discrimination under the ADA and therefore reverse.

Steele v. Thiokol Corp., 241 F.3d 1248 (2/2001)  Robert Steele appeals from the district court's grant of summary judgment to Thiokol Corporation and two individual defendants on his claims under the Americans with Disabilities Act (ADA), 42 U.S.C. § 1210. We affirm.

Lusk v. Ryder Integrated Logistics, 238 F.3d 1237 (1/2001)  Plaintiff Louis Ray Lusk has a forty pound permanent lifting restriction due to a heart condition. He filed a complaint against his former employer, Defendant Ryder Integrated Logistics, alleging disability discrimination under the Americans With Disabilities Act (ADA), 42 U.S.C. § 12101-12213, and wrongful discharge under the Oklahoma's Workers' Compensation Act, Okla. Stat. tit. 85, §§ 5-6. The district court granted summary judgment for Defendant on the ADA claim, see Fed. R. Civ. P. 56, holding that Plaintiff failed to submit evidence creating a genuine issue of material fact as to whether he was "disabled" under the ADA. Plaintiff subsequently requested the district court to certify for interlocutory appeal pursuant to 28 U.S.C. § 1292(b), the issue of whether he was required to proffer comparative evidence of lifting restrictions in the general population to establish a genuine issue of material fact as to his alleged disability.

The district court certified the following issue for interlocutory appeal: Whether, to avoid summary judgment on Plaintiff's ADA claim, our decision in Lowe v. Angelo's Italian Foods, Inc., 87 F.3d 1170 (10th Cir. 1996), required Plaintiff to present evidence as to the number of pounds that the average person in the general population can lift and/or the conditions, frequency, or duration under which the average person can lift that amount of weight. We granted Plaintiff's petition for leave to appeal pursuant to § 1292(b).¹ We review the district court's grant of summary judgment de novo, applying the same legal standard as the district court. Simms v. Oklahoma ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999). Applying this standard, we uphold the district court's grant of summary judgment in favor of Defendant.

Borgialli v. Thunder Basin Coal Co., 235 F.3d 1284 (12/2000)  Plaintiff Dennis Borgialli claims that his former employer, the Black Thunder Mine in Gillette, Wyoming, (hereafter referred to as the "Mine") terminated his employment in violation of the Americans with Disabilities Act, 42 U.S.C. §12101 et seq, and in violation of Wyoming state law.¹ The district court entered summary judgment for the defendants on all claims, and plaintiff has appealed this order.² We exercise jurisdiction under 28 U.S.C. §1291 and affirm.

Wells v. Shalala, 228 F.3d 1137 (2000)  Around 1979, Plaintiff Cecil Phillip Wells began working as a government auditor based in the Denver field office of the Department of Health and Human Services (HHS), Office of Inspector General (OIG), Office of Audit Services (OAS). Plaintiff took "discontinued service" retirement in May 1997 after declining a reassignment from OAS' Denver office to OAS headquarters in Washington, D.C as a proffered accommodation for his claimed inability to travel to field audit sites. Thereafter, Plaintiff filed suit against HHS and Secretary Shalala under the Civil Service Reform Act of 1978 (CSRA), as amended, specifically 5 U.S.C. § 7702, alleging constructive discharge on the basis of disability discrimination and retaliation respectively, in violation of the Rehabilitation Act of 1973, specifically 29 U.S.C. §§ 791 & 794, and the Whistleblower Protection Act of 1989 (WPA), specifically 5 U.S.C. § 2302(b)(8) & (b)(9). After a motion hearing, the district court granted summary judgment in favor of HHS and Secretary Shalala. Plaintiff appeals. We exercise jurisdiction under 28 U.S.C. § 1291. We review the district court's decision to grant summary judgment de novo, applying the same standard as the district court, Barker v. City of Del City, 215 F.3d 1134, 1137 (10th Cir. 2000), and affirm.¹

Cisneros v. Wilson, 226 F.3d 1113 (2000)  Plaintiff Rebecca Cisneros (Plaintiff) brought this action against the New Mexico Department of Children, Youth, and Families (Defendant Department).(1) Plaintiff alleged that Defendant Department (1) terminated her because of her disability (severe depression and acute anxiety) in violation of Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101_12213, and (2) retaliated against her in violation of Title VII of the 1964 Civil Rights Act (Title VII), as amended, 42 U.S.C. §§ 2000e to 2000e_15, because she had filed charges of discrimination with the Equal Employment Opportunity Commission (EEOC). The district court granted Defendants' motion for summary judgment on both claims, holding that Plaintiff could not prove: (1) that she was a "qualified individual with a disability" as required by the ADA, or (2) that she was retaliated against because she had filed charges with the EEOC as required by Title VII. The Plaintiff appealed. Following argument there was an intervening Supreme Court opinion that was handed down in January 2000, Kimel v. Florida Bd of Regents, 120 S. Ct. 631 (2000). We requested supplemental memoranda from the parties and from the Government as an intervenor. These have been considered and we have determined that the Eleventh Amendment, which was raised at oral argument, does not bar this suit and that we have jurisdiction pursuant to 28 U.S.C. § 1291. For reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.

Doyal v. Oklahoma Heart, Inc., 213 F.3d 492 (2000) Carol Doyal ("Doyal") appeals from the order granting summary judgment in favor of her former employer, Oklahoma Heart, Inc. ("Oklahoma Heart"). Doyal alleged that Oklahoma Heart terminated her employment as an administrator at Oklahoma Heart in violation of the Americans with Disabilities Act ("ADA"). Because Doyal failed to introduce evidence sufficient to support a reasonable conclusion that she was substantially limited in a major life activity or was regarded as such by Oklahoma Heart, we affirm.

Taylor v. Pepsi-Cola Co., 196 F.3d 1106 (1999)  Plaintiff Stephen Thomas Taylor sued his former employer, Pepsi-Cola Company, Beverage Products Corporation (BPC), and Pepsico, Inc., alleging (1) wrongful termination under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112; (2) wrongful termination under the Oklahoma Workers' Compensation Act, Okla. Stat. tit. 85, § 5; and (3) intentional and/or negligent infliction of emotional distress. The district court concluded as a matter of law that Plaintiff failed to establish that he was qualified to perform the essential functions of the job held or desired under the ADA. The court further concluded that Defendants did not violate the Oklahoma Workers' Compensation Act when they terminated Plaintiff. Finally, the district court concluded that Plaintiff failed to present any facts to support his claim of intentional and/or negligent infliction of emotional distress. Accordingly, the district court granted Defendants' motion for summary judgment. Plaintiff appeals. We exercise jurisdiction under 28 U.S.C. § 1291.  We review the district court's grant of summary judgment de novo applying the same standard as the district court under Fed. R. Civ. P. 56(c). See Simms v. Oklahoma ex rel. Dep't of Mental Health & Substance Abuse Servs. , 165 F.3d 1321, 1326 (10th Cir.) petition for cert. filed , 67 U.S.L.W. 3733 (May 24, 1999). Summary judgment is appropriate where no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Applying this standard, we affirm.

Kimber v. Thiolol Corp., 196 F.3d 1092 (1999)  Plaintiff-Appellant Ivan Lynn Kimber appeals from the entry of summary judgment in favor of Defendants-Appellees Thiokol Corporation ("Thiokol") and the Thiokol Corporation Disability Benefits Plan ("Plan") on a claim for disability benefits under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001- 1461, and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101-12213. Mr. Kimber first argues that Thiokol acted arbitrarily and capriciously by limiting his long term disability benefits to two years pursuant to a plan provision capping benefits for disabilities "due to a mental condition." Second, Mr. Kimber argues that the Plan violates the ADA by establishing different levels of benefits for disabilities caused by physical or mental conditions. Jurisdiction arises under 28 U.S.C. § 1291 and we affirm.

Davoll v. Webb, 194 F.3d 1116 (1999)  We AFFIRM the jury verdict in favor of plaintiffs. We also AFFIRM the district court's denial of plaintiffs' motion for class certification and its grant of summary judgment in favor of Denver on plaintiffs' equal protection claims. We REVERSE and REMAND plaintiffs' front pay award to the district court for further consideration in light of this opinion. We AFFIRM the district court's grant of summary judgment in favor of the United States on the liability phase of its pattern and practice suit.

Sorensen v. University of Utah Hosp., 194 F.3d 1084 (1999)  Plaintiff Laura K. Sorensen brought suit against her former employer, Defendant University of Utah Hospital, alleging discrimination in violation of the Americans with Disabilities Act (ADA). The district court concluded that as a matter of law Plaintiff was not disabled under the ADA and granted summary judgment in favor of Defendant. Plaintiff appeals. We exercise jurisdiction under 28 U.S.C. § 1291, and affirm.

Hardy v. S.F. Phosphates Ltd. Co., 185 F.3d 1076 (1999)  Ray Hardy sued his former employer, S.F. Phosphates, under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq. , and the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq ., alleging the company illegally terminated his employment due to his age and his heart condition, rather than on the basis of his sexually harassing conduct as S.F. Phosphates asserted. In addition, he claimed that S.F. Phosphates breached an implied contract based on the personnel manual which required progressive discipline and good cause for termination. The district court granted summary judgment for S.F. Phosphates on all counts. We affirm.

Smith v. Midland Brake, Inc., a Dov. of Echlin, Inc., 180 F.3d 1154 (1999) Here, the record establishes a genuine dispute of material fact regarding whether Smith sufficiently invoked the interactive process and, if so, whether Midland Brake adequately responded to a request for reassignment. Thus, summary judgment on the record before us was inappropriate on that issue.

Butler v. City of Praire Village, Kan., 172 F.3d 736 (1999)  we conclude that Plaintiff has alleged sufficient facts to establish genuine issues of material fact on whether the reorganization was a pretext for terminating him. Of course, even if Plaintiff succeeds in proving that the reason proffered by the City was pretextual, he still bears the ultimate burden of establishing intentional discrimination. See Texas Dep't of Community Affairs v. Burdine , 450 U.S. 248, 253 (1981) ("The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff."); McCullough v. Real Foods, Inc. , 140 F.3d 1123, 1128 (8th Cir. 1998) (noting that Supreme Court has "made clear that a plaintiff in a pretext case must establish ` both that the reason was false, and that discrimination was the real reason'" (citation omitted)).