FILED

United States Court of Appeals

Tenth Circuit

June 23, 2009

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JARED L. DILLON,

Plaintiff - Appellant,

v.

MOUNTAIN COAL COMPANY,

L.L.C.; ARCH WESTERN

RESOURCES, L.L.C., a Delaware

Corporation; ARCH COAL, INC., a

Delaware Corporation, 

Defendants - Appellees.

No. 08-1004

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D. Ct. No. 1:01-CV-02199-MSK-MEH)

Damon J. Davis (J. Keith Killian, with him on the briefs), Killian, Jensen &

Davis, P.C., Grand Junction, Colorado, appearing for Appellant.

Jeffrey T. Johnson (Christina Gomez and Alyssa Yatsko with him on the brief),

Holland & Hart LLP, Denver, Colorado, appearing for Appellees.

Before TACHA, SEYMOUR, and HOLMES, Circuit Judges.

TACHA, Circuit Judge.

Jared Dillon, a former employee of Mountain Coal Company, L.L.C., won a
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jury verdict against Mountain Coal and its parent companies (collectively,

“Mountain Coal”) on his claims of discrimination under the Americans with

Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq. Thereafter, the

district court granted Mountain Coal’s motion for judgment as a matter of law,

concluding that Mr. Dillon had not put forth sufficient evidence to show that

Mountain Coal regarded him as disabled. Mr. Dillon appeals. We have

jurisdiction under 28 U.S.C. § 1291, and we AFFIRM. 

I. BACKGROUND

In March 1999, Mountain Coal hired Mr. Dillon as an underground

maintenance mechanic, or “lube man,” at West Elk Mine. Mr. Dillon testified

that his responsibilities included “keep[ing] the essential fluids, hydraulic, gear

oil . . . [and] so forth, at an operable level on the machinery; greasing, washing,

and maybe replacing a few minor bits here and there.” The official job

requirements included being able to lift fifty to sixty pounds and being able to

swing a sledgehammer. 

On April 19, 1999, Mr. Dillon injured his neck and back when the cover on

a mining machine fell and struck him. He returned to work on his next scheduled

workday, April 23, but told his supervisor, Bob Turner, that he was in a lot of

pain. Mr. Turner assigned Mr. Dillon to less physically demanding tasks, such as

refueling and servicing trucks. Mr. Dillon saw a doctor on April 30 and again on

May 5, and the doctor restricted Mr. Dillon’s work activities to lifting no more
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than fifteen pounds. The doctor also referred Mr. Dillon to a second doctor, who

restricted Mr. Dillon from doing any work for one week, and then released him to

work without restrictions.

The second day after he had returned to work, on June 2, Mr. Dillon told

supervisor Steve O’Connell that he was in a lot of pain and that his inability to

work at his usual speed might endanger himself and others. Mr. O’Connell told

Mr. Dillon to go home, and he did. After that day, Mr. Dillon did not return to

work at West Elk Mine. That fall, Dr. Robert Fox determined that Mr. Dillon was

able to move well and that he had reached “maximum medical improvement.” On

January 12, 2000, Dr. Fox gave Mr. Dillon permanent lifting restrictions of no

more than fifty pounds maximum and twenty-five pounds occasionally. 

Mr. Dillon testified that he twice called Human Resources Manager Edgar

Langrand to ask when he could return to work. Mr. Langrand responded that Mr.

Dillon could return to work only if and when he had no restrictions. On January

24, Mr. Langrand sent Mr. Dillon a letter, informing him that according to Dr.

Fox’s reports and recommended lifting restrictions, Mr. Dillon was unable to

work. The letter also stated that Mr. Dillon’s short-term disability period had

expired and that because he was unable to return to work, he was being fired.

Eventually, Mr. Dillon and three co-plaintiffs filed suit against Mountain

Coal, asserting state-law claims as well as discrimination under the ADA. After

Mountain Coal filed a pre-trial motion for summary judgment, the district court
1

Mountain Coal characterizes the new motion as a renewed motion under

Rule 50(a). Mr. Dillon characterizes it as a Rule 50(b) motion. We agree with

Mr. Dillon’s conception, but his characterization does not affect our analysis.

2

Mr. Clawson and Mountain Coal subsequently settled.

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dismissed two plaintiffs and limited Mr. Dillon and co-plaintiff Michael Clawson

to their claims under the ADA. At the close of the plaintiffs’ case, Mountain

Coal orally moved for judgment as a matter of law under Fed. R. Civ. P. 50(a),

based primarily on its argument that the plaintiffs failed to prove that Mountain

Coal regarded them as disabled. See 42 U.S.C. § 12102(1)(C). The court

reserved ruling on the motion, and at the close of all evidence Mountain Coal

renewed the motion without further argument. The district court reserved ruling

on the motion until after the jury had rendered a verdict. The jury found for both

plaintiffs. Mountain Coal then renewed its motion for judgment as a matter of

law under Rule 501

 and filed a detailed brief in support of the motion. The

district court granted the motion as to Mr. Dillon, but denied the motion as to Mr.

Clawson. Clawson v. Mountain Coal Co., No. 01-CV-02199-MSK-MEH, 2007

WL 201253, at *10 (D. Colo. Jan. 24, 2007).2

Mr. Dillon appeals, asserting three points of error. Of primary importance,

he contends that the district court erred in holding that there was insufficient

evidence for a reasonable jury to find that Mountain Coal regarded Mr. Dillon as

disabled. He further argues that Mountain Coal’s motion for judgment as a matter

of law was legally insufficient because it did not identify the specific evidence
3

The current version of the ADA prohibits discrimination against “a

qualified individual on the basis of disability . . . .” 42 U.S.C. § 12112(a). The

version of the ADA that was law when this suit was filed prohibited

discrimination “against a qualified individual with a disability because of the

disability of such individual . . . .” 42 U.S.C. § 12112(a) (2002). The change in

the statute’s wording does not affect our analysis in this case.

4

It is undisputed that Mountain Coal is a covered entity for purposes of the

ADA. See 42 U.S.C. § 12111(2) (“The term ‘covered entity’ means an employer .

. . .”).

5

Equal Employment Opportunity Commission (“EEOC”) regulations

explain that “although an individual may have an impairment that does not in fact

substantially limit a major life activity, the reaction of others may prove just as

(continued...)

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that he had failed to present. Finally, Mr. Dillon asserts that the district court

abused its discretion in excluding certain testimony. 

II. DISCUSSION

A. “Regarded-As” Claims Under the ADA

The ADA prohibits employment discrimination against individuals with

disabilities. 42 U.S.C. § 12112(a).3

 As defined by the ADA, a disability is “(A) a

physical or mental impairment that substantially limits one or more major life

activities . . .; (B) a record of such an impairment; or (C) being regarded as

having such an impairment . . . .” Id. § 12102(1)(A)–(C). Where, as in this case,

the plaintiff contends that his employer regarded him as disabled, he must show

that he has an impairment that “does not substantially limit major life activities

but is treated by a covered entity4

 as constituting such limitation.” 29 C.F.R.

§ 1630.2(l)(1).5

 See also Jones v. United Parcel Serv., Inc., 502 F.3d 1176, 1190
5

(...continued)

disabling. ‘Such an impairment might not diminish a person’s physical or mental

capabilities, but could nevertheless substantially limit that person’s ability to

work as a result of the negative reactions of others to the impairment.’” 29

C.F.R. pt. 1630 app. (quoting School Bd. v. Arline, 480 U.S. 273, 283 (1987)).

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(10th Cir. 2007) (in a regarded-as suit, “a plaintiff must show that an employer

has mistaken beliefs about the plaintiff’s abilities: the employer ‘must believe

either that one has a substantially limiting impairment that one does not have or

that one has a substantially limiting impairment when, in fact, the impairment is

not so limiting.’”) (quoting Sutton v. United Air Lines, Inc., 527 U.S. 471, 489

(1999)). 

Working is a “major life activity.” 29 C.F.R. § 1630.2(i); EEOC v.

Heartway Corp., 466 F.3d 1156, 1162 (10th Cir. 2006). To prevail on a claim

that his employer regarded him as substantially limited in the major life activity

of working, a plaintiff must demonstrate that his employer regarded him as

significantly restricted in performing either (1) a class of jobs; or (2) a broad

range of jobs in various classes. See Heartway, 466 F.3d at 1163 (holding that

“there must be sufficient evidence that the employer subjectively believed the

employee to be significantly restricted as to a class of jobs or broad range of jobs

in various classes.”). The EEOC’s regulations define a “class of jobs” as “[t]he

job from which the individual has been disqualified because of an impairment,

and the number and types of jobs utilizing similar training, knowledge, skills or

abilities, within that geographical area, from which the individual is also
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disqualified because of the impairment.” 29 C.F.R. § 1630.2(j)(3)(ii)(B). A

“broad range of jobs” is defined as “[t]he job from which the individual has been

disqualified because of an impairment, and the number and types of other jobs not

utilizing similar training, knowledge, skills or abilities, within that geographical

area, from which the individual is also disqualified because of the impairment.” 

Id. § 1630.2(j)(3)(ii)(C). 

We therefore evaluate a “regarded as” claim under the ADA using a

two-step inquiry. First, we must determine whether the employer regarded the

employee as significantly restricted in performing his specific job because of an

impairment. See Heartway, 466 F.3d at 1165. Next, we determine whether the

employer subjectively believed that the employee was significantly restricted in

performing either a class of jobs or a broad range of jobs in various classes. Id. at

1163. Because this type of claim rests heavily on the employer’s subjective state

of mind, we have explained that it is difficult to prove:

Proving that an employee is regarded as disabled in the major life

activity of working takes a plaintiff to the farthest reaches of the ADA.

It is a question embedded almost entirely in the employer’s subjective

state of mind. Thus, proving the case becomes extraordinarily difficult.

Not only must a plaintiff demonstrate that an employer thought he was

disabled, he must also show that the employer thought that his disability

would prevent him from performing a broad class of jobs. As it is safe

to assume employers do not regularly consider the panoply of other jobs

their employees could perform, and certainly do not often create direct

evidence of such considerations, the plaintiff's task becomes even more

difficult.

Id. at 1162 (quoting Ross v. Campbell Soup Co., 237 F.3d 701, 709 (6th Cir.
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2001)).

B. Sufficiency of the Evidence

We review de novo the district court’s grant of judgment as a matter of law

to Mountain Coal. See Johnsen v. Indep. Sch. Dist. No. 3, 891 F.2d 1485, 1489

(10th Cir. 1989). Judgment as a matter of law is appropriate when a “party has

been fully heard on an issue during a jury trial and the court finds that a

reasonable jury would not have a legally sufficient evidentiary basis to find for

the party on that issue.” Fed. R. Civ. P. 50(a)(1). The decisive question is

whether “the plaintiff has arguably proven a legally sufficient claim.” Turnbull v.

Topeka State Hosp., 255 F.3d 1238, 1241 (10th Cir. 2001). 

In evaluating Mr. Dillon’s “regarded as” claim under the ADA, we must

first determine whether Mountain Coal regarded Mr. Dillon as substantially

limited in performing his specific job due to an impairment. See Heartway, 466

F.3d at 1165. We agree with the district court that Mr. Dillon offered sufficient

evidence that, due to his injuries and resultant work restrictions, Mountain Coal

regarded him as substantially limited in performing that job. See Clawson, 2007

WL 201253, at *7. During the relevant time frame, Mountain Coal had enacted a

so-called “no restrictions” or “100% healed” policy. Under that policy, Mountain

Coal would not permit any employee with medical restrictions from working in

any capacity at the mine. Although Mountain Coal put forth some evidence that it

did not categorically apply the policy (and therefore did not terminate Mr. Dillon
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solely because of his restrictions), we are required to view the evidence in the

light most favorable to the verdict. The jury was entitled to believe that Mountain

Coal enforced its policy as to Mr. Dillon. Mr. Dillon also produced the letter in

which Mountain Coal announced that it was terminating him. That letter

specifically referenced Mr. Dillon’s work restrictions as a reason for firing him. 

Still, Mr. Dillon must also show that Mountain Coal regarded him as

substantially limited in his ability to perform either a class of jobs or a broad

range of jobs in various classes, in the geographic area surrounding West Elk

Mine. On this point, Mr. Dillon again emphasizes Mountain Coal’s “no

restrictions” policy. That policy, Mr. Dillon argues, shows that Mountain Coal

regards Mr. Dillon as substantially limited in performing mining jobs.

The policy, however, only speaks to whether Mountain Coal regarded Mr.

Dillon as substantially limited in his ability to work at West Elk Mine. The

policy does not reveal “the number and types of jobs utilizing similar training,

knowledge, skill or abilities” in the geographic area, as the EEOC regulations

require. 29 C.F.R. §1630.2(j)(3)(ii)(B). Mr. Dillon did not put on other evidence

describing the jobs available in the area that fell into the class of “mining jobs,”

nor did he produce evidence demonstrating that mining jobs are, in fact, a class of

jobs. He therefore produced no evidence from which a reasonable jury could

conclude that Mountain Coal regarded him as substantially limited in the ability

to perform a class of jobs.
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Mountain Coal’s no-restrictions policy also does not, by itself, support a

finding that Mountain Coal regarded Mr. Dillon as unable to perform a broad

range of jobs in various classes in the geographic area. See id. §

1630.2(j)(3)(ii)(C). Again, the policy only speaks to the jobs at West Elk Mine,

and Mr. Dillon did not produce evidence describing the jobs available in the area. 

We have stated that a single place of employment could include a “broad range of

jobs in various classes.” See Justice v. Crown Cork & Seal Co., 527 F.3d 1080,

1088 (10th Cir. 2008) (holding that because the employer believed the plaintiff

“could only do one or two jobs among the variety of jobs in the plant,” the jury

could find that the employer believed he was “unable to perform a broad range of

jobs in various classes.”) (quotations omitted). However, Mr. Dillon did not

produce evidence showing that, within West Elk Mine, there is a broad range of

jobs in various classes that do not utilize “similar training, knowledge, skills or

abilities” as the jobs Mr. Dillon performed at the mine. See 29 C.F.R. §

1630.2(j)(3)(ii)(C). His evidence shows only that West Elk Mine had a variety of

mining jobs. He did not show that those jobs fell into different classes, or that the

jobs would require different skills and training from Mr. Dillon’s job at the mine.

Thus, while a jury could infer that Mountain Coal considered Mr. Dillon as

substantially limited in his ability to work at West Elk Mine, there was no

evidence that Mountain Coal regarded him as substantially limited in his ability to

work outside of West Elk Mine, or that the jobs within the mine could properly be
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characterized as a “class of jobs” or a “broad range of jobs.” 

Mr. Dillon cites McKenzie v. Dovala, 242 F.3d 967 (10th Cir. 2001), to

support his argument that an employer’s belief that an employee cannot perform

any job in the company is sufficient to meet the employee’s evidentiary burden. 

We disagree that McKenzie stands for that proposition. The issue in McKenzie

was whether there was evidence that the plaintiff’s former employer—the county

sheriff’s office—regarded her as limited in her ability to perform only her prior

job, or whether her employer regarded her as limited in performing a class of jobs

that we characterized as “law enforcement jobs.” Id. at 970–71. We did not hold,

as Mr. Dillon suggests, that an employer’s refusal to rehire the plaintiff

constitutes evidence that the jobs at the company necessarily qualify as a “class of

jobs” or “broad range of jobs.”

Mr. Dillon also points to evidence that Mountain Coal’s safety

representative told his co-plaintiff, Mr. Clawson, that he “probably would not be

returning to the mining industry.” Clawson, 2007 WL 201253, at *4. Because

Mr. Clawson also had work restrictions, Mr. Dillon argues that the statement

shows that Mountain Coal regarded Mr. Dillon as similarly limited. We do not

agree. The statement was directed toward Mr. Clawson alone. Mr. Clawson and

Mr. Dillon suffered from different injuries and were under different work

restrictions. Mr. Dillon’s restrictions involved heavy lifting, while Mr. Clawson’s

involved driving. A jury could not reasonably infer from this comment that
6

Of course, as we explained, Mr. Dillon also failed to establish that “mining

jobs” constitute a class of jobs.

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Mountain Coal believed Mr. Dillon was similarly limited in his ability to perform

mining jobs.6

Mr. Dillon argues that he and Mr. Clawson later found positions at two

nearby mines, and that their employment was evidence that jobs similar to those

at West Elk Mine were available in the geographic area. However, without

additional evidence regarding the two men’s specific jobs at those mines, a jury

could not conclude that those jobs “utiliz[ed] similar training, knowledge, skills

or abilities” as the job Mr. Dillon performed at West Elk Mine. 29 C.F.R. §

1630.2(j)(3)(ii)(B). 

Citing authority from the Sixth Circuit, Mr. Dillon argues that Mountain

Coal’s reasons for firing him were pretextual, which is evidence that Mountain

Coal regarded him as disabled. See Ross v. Campbell Soup Co., 237 F.3d 701,

708 (10th Cir. 2001). Mountain Coal, however, has not claimed that the lifting

restrictions played no role in Mr. Dillon’s firing. Mountain Coal has disputed

whether it categorically applies its “no-restrictions policy,” but has not given any

alternative reason for firing Mr. Dillon. Thus, Mountain Coal cannot be said to

have created a pretextual reason for firing him.

We conclude, therefore, that Mr. Dillon did not produce evidence to

establish that Mountain Coal regarded him as substantially limited in his ability to
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perform either a class of jobs or a broad range of jobs in various classes, in the

geographic area surrounding West Elk Mine. The evidence was not sufficient to

support the jury’s verdict.

C. The Rule 50 Motion

 Mountain Coal’s motion for judgment as a matter of law satisfied the

requirements set forth under Federal Rule of Civil Procedure 50. A motion for

judgment as a matter of law “must specify the judgment sought and the law and

facts that entitle the movant to the judgment.” Fed. R. Civ. P. 50(a)(2). We

consider the sufficiency of Mountain Coal’s pre-verdict Rule 50 motion in

isolation from arguments it raised for the first time in its renewed post-verdict

Rule 50 motion. See Marshall v. Columbia Lea Reg’l Hosp., 474 F.3d 733,

738–39 (10th Cir. 2007) (stating that a renewed post-verdict motion for judgment

as a matter of law cannot assert grounds for relief that are not asserted in the

original pre-verdict motion). Thus, the issue is whether Mountain Coal’s Rule 50

motion at the close of the plaintiffs’ case was sufficient.

In evaluating the sufficiency of a Rule 50 motion, we liberally construe

Rule 50’s requirements. United Int’l Holdings, Inc. v. Wharf (Holdings) Ltd., 210

F.3d 1207, 1228 (10th Cir. 2000). “Technical precision is unnecessary.” Id. We

apply Rule 50 rigidly only when necessary to protect a party’s right to a jury trial

or to ensure that a party has notice of an evidentiary deficiency. Id. at 1228–29. 

The motion must be specific enough “to apprise the court and opposing counsel of
7

We recognize that Mountain Coal was addressing Mr. Clawson’s case

when explaining the legal requirements for a “regarded as” claim under the ADA. 

However, because Mr. Dillon argued similar claims, and both plaintiffs bore the

burden of demonstrating that Mountain Coal regarded them as disabled, any

(continued...)

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the movant’s position with respect to the motion.” Id. at 1229 (quoting 9A

Charles Alan Wright & Arthur R. Miller, Fed. Practice & Procedure § 2533

(1995)).

Mr. Dillon asserts that, because Mountain Coal’s Rule 50 motion did not

specifically discuss Mr. Dillon’s lack of evidence regarding the job market

surrounding West Elk Mine, the motion did not “specify . . . the law and facts that

entitle the movant to the judgment.” See Fed. R. Civ. P. 50(a)(2). In its motion,

Mountain Coal argued that it was the plaintiffs’ burden to demonstrate that

Mountain Coal regarded them as substantially limited in the major life activity of

working, in either a class of jobs or in a broad range of jobs. Additionally,

Mountain Coal contended that “[t]he focus [of the plaintiffs’ evidence] was on the

restrictions and on the jobs at Mountain Coal, and there is no evidence that

Mountain Coal believed that they couldn’t do jobs in other industries at other

mines anywhere outside of the property at West Elk.”

Mountain Coal also referenced Jury Instruction No. 12, which identified the

requirements for determining that an employee was regarded by his employer as

being substantially limited in the ability to perform either a “class of jobs” or a

“broad range of jobs.”7

 After referencing this instruction, the attorney defined
7

(...continued)

statement as to the requirements for a successful ADA claim put both plaintiffs on

notice as to the evidentiary requirements. Mountain Coal also made it clear that it

believed Mr. Dillon had not produced the evidence necessary to support a

“regarded as” ADA claim.

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both a “class of jobs” and a “broad range of jobs,” based on the EEOC’s

guidelines. Both definitions made reference to the jobs available in the

geographic area.

We disagree with Mr. Dillon’s contention that the motion gave him

inadequate notice about the deficiency in his evidence. Mountain Coal

established that the plaintiffs were required to put on evidence that Mountain

Coal regarded the plaintiffs as substantially limited in performing either a “class

of jobs” or a “broad range of jobs in various classes.” Mountain Coal defined

those terms, making it clear that the plaintiffs would need to provide evidence

about other jobs in the area to prevail on their claims. In addition, the district

court stated that it was “seriously concerned that the record . . . is inadequate to

establish the requirements for a regarded as claim under the ADA.” We therefore

conclude that Mountain Coal’s Rule 50 motion gave the plaintiffs adequate notice

regarding the evidence that they needed to produce, and informed both the

plaintiffs and the court about “the movant’s position with respect to the motion.” 

United Int’l, 210 F.3d at 1228–29. Accordingly, the motion met Rule 50’s

requirement that it “specify the judgment sought and the law and facts that entitle

the movant to the judgment.” Fed. R. Civ. P. 50(a)(2).
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D. Excluded Testimony

Finally, we reject Mr. Dillon’s argument that, if we conclude his evidence

was insufficient, we should remand for a new trial based on the court’s erroneous

exclusion of certain testimony. We review evidentiary rulings for an abuse of

discretion. United States v. Rogers, 556 F.3d 1130, 1136 (10th Cir. 2009). The

district court did not allow Mr. Clawson to respond when asked how miners were

classified at a mine near West Elk. The court also did not allow John Ballard, a

former Mountain Coal employee, to testify as to his position at a second nearby

mine. Mr. Dillon asserts that this testimony could have given the jury

information about jobs in that area that required similar skill or training as the

jobs at West Elk Mine. In neither case, however, did Mr. Dillon’s attorney assert

that argument when confronted with the objection. Therefore, the issue was not

preserved for appeal. See United States v. Martinez, 776 F.2d 1481, 1485 (10th

Cir. 1985) (holding that an issue is not properly preserved for appeal when an

attorney asserted different grounds for allowing evidence at trial and on appeal,

and when no offer of proof was made). The district court also did not abuse its

discretion when it limited the testimony of the two co-plaintiffs who were

dismissed on summary judgment. There is no indication that they could have

provided the evidence that Mr. Dillon lacked regarding the job market in the area

surrounding West Elk Mine.

III. CONCLUSION
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We agree with the district court’s determination that Mr. Dillon produced

insufficient evidence from which a reasonable jury could conclude that Mountain

Coal regarded Mr. Dillon as disabled. We also hold that Mountain Coal’s motion

for judgment as a matter of law complied with Rule 50, and that the district court

did not abuse its discretion in limiting the testimony of certain witnesses. 

Accordingly, we AFFIRM the district court’s grant of judgment as a matter of law

to Mountain Coal.