* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

AUG 13 2001

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

TIMOTHY A. MAUK,

Plaintiff-Appellant,

v.

PRESBYTERIAN HEALTH

PLAN, INC.,

Defendant-Appellee.

No. 00-2482

(D.C. No. CIV-99-1248-LCS)

(D. N.M.)

ORDER AND JUDGMENT *

Before SEYMOUR and McKAY , Circuit Judges, and BRORBY , Senior Circuit

Judge.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.
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Plaintiff brought this action alleging violation of the Americans with

Disabilities Act (ADA); he maintains that defendant terminated his employment

because of his disability. The district court granted summary judgment in favor

of defendant, and plaintiff appeals. After de novo review, see Selenke v. Med.

Imaging of Colo. , 248 F.3d 1249, 1255 (10th Cir. 2001), we affirm.

In an ADA case, the plaintiff bears the initial burden of establishing

a prima facie case of discrimination, which requires three showings: that he is

disabled within the meaning of the ADA; that he was qualified to perform the

essential functions of the job, with or without reasonable accommodation; and

that he was discriminated against because of his disability. Butler v. City of

Prairie Vill. , 172 F.3d 736, 747-48 (10th Cir. 1999). Here, there was no dispute

that plaintiff made the first two showings. Thus, the district court focused on

whether plaintiff met the third requirement by showing that defendant “terminated

h[is] employment under circumstances giving rise to an inference that the action

was based on h[is] disability.” See Selenke , 248 F.3d at 1259 . To meet this

burden, plaintiff must “present some affirmative evidence that disability was

a determining factor in the employer’s decision.” Id. (quotation omitted).

If a plaintiff establishes a prima facie case,

the burden shifts to the employer to offer a legitimate,

nondiscriminatory reason for the challenged action. If the

defendant articulates such a reason, then the plaintiff may prove

that it is merely a pretext for unlawful discrimination on the basis
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of h[is] disability. At all times, the plaintiff retains the ultimate

burden of proving such discrimination.

Id. (citations omitted).

In granting summary judgment, the district court held that plaintiff did not

establish a prima facie case because he did not show that the circumstances

surrounding the termination gave rise to an inference that the action was based on

his disability. Alternatively, the district court noted that, even if plaintiff had

established a prima facie case, the record did not contain evidence raising an

issue of material fact as to pretext. On appeal, we will assume without deciding

that plaintiff established a prima facie case, because we hold that summary

judgment on this record was proper based on plaintiff’s failure to provide

evidence of pretext. See Bullington v. United Air Lines, Inc. , 186 F.3d 1301,

1316 (10th Cir. 1999).

We agree with the district court that the record contains no evidence from

which a reasonable factfinder could conclude that defendant’s stated reasons for

terminating plaintiff’s employment were pretextual. See Selenke , 248 F.3d at

1261. Plaintiff acknowledges that he made errors which his supervisor corrected,

and he also acknowledges certain situations that occurred with coworkers. He

simply offers different interpretations of the situations and the seriousness of his

errors. In short, his disputes boil down to differences between his view of

appropriate management and that of defendant. See id. In addition, plaintiff’s
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evidence that a temporary employee was responsible for the letter-duplication

incident does not further his argument of pretext because the record indicates

that it was plaintiff’s responsibility to ensure that the task was completed

correctly. App. at 112.

In sum, we assume that plaintiff established a prima facie case of

discrimination on account of his disability, but we agree with the district court

that plaintiff did not carry his burden of establishing pretext. The record

supports summary judgment based on that basis. AFFIRMED.

Entered for the Court

Wade Brorby

Senior Circuit Judge