## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 9 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOSEPH C. NIELSEN, individually and on behalf of all similarly situated shareholders of Moroni Feed Company, Plaintiff-Appellant, v. MORONI FEED COMPANY, a Utah Corporation; TIM BLACKHAM, Individually and as Chairman of the Board of Directors of Moroni Feed Company; DAVID BAILEY, individually and as President of Moroni Feed Company; CAROL BLAIN, individually; FRANK COOK, individually and as Vice President of Moroni Feed Company; BLAKE DONALDSON, individually; and PARRY OLSON, individually and as a member of the Board of Directors of Moroni Feed Company, Defendants-Appellees. No. 97-4118

Appeal from the United States District Court

for the District of Utah (D.C. No. 2:95CV 0910S)
David L. Barclay and Lynn S. Davies, Richards, Bran dt, Miller & Nelson, Salt Lake City, Utah (Mark L. McCarty with them on the b riefs) for AppellantPetitioner.- 2 -

Stanley J. Preston, Snow, Christensen & Martineau, Salt Lake City, Utah (Michael R. Carlston and Camille N. Johnson with hi m on the briefs) for Appellees-Respondents.

Before SEYMOUR, Chief Judge, andEBEL and KELLY , Circuit Judges.

EBEL , Circuit Judge.

Joseph C. Nielsen (“Nielsen”) was terminated from h is position as President of the Moroni Feed Company (“Moroni Feed” ) after repeated incidents in which Nielsen was found, uninvited, in private h omes in the local community, including the homes of Moroni Feed employees. Niel sen sued Moroni Feed under the ADA, claiming that the real reason for his term ination was an erroneous perception on behalf of his employer that he illega lly used prescription painkilling drugs and that he was addicted to such drug s. He also sued Moroni Feed under various state causes of action. The districtcourt granted Moroni Feed’s motion for summary judgment and then dismissed Niel sen’s state claims for lack of jurisdiction. Nielsen now appeals. We affirm.

I. BACKGROUND

Moroni Feed is a farming cooperative whose membersh ip consists mainly1 Nielsen claims that he has no recollection of this request by Blackham,

and further asserts that even if the request was ma de there was no indication made to him that failure to honor the request would resu lt in disciplinary action or termination. - 3 - of turkey growers operating in Sanpete County, Utah . Nielsen began his employment with Moroni Feed in 1970 and served as P resident of the co-op for the ten years prior to his termination in 1995. Fo r many years prior to the events that led up to his termination, Nielsen had been ta king prescription pain-killing medication as a result of a number of chronic ailme nts, including arthritis, back pain, shingles, Barrett’s esophagus, and others. In September, 1994, Moroni Feed received a report that Nielsen was found to have entered the home of Board Member Parry Olso n (“Olson”) without permission. This was the second time Nielsen had e ntered that particular home without permission, both times on a Sunday morning, when the Olson family regularly attended church. The Chairman of the Boa rd of Moroni Feed, Tim Blackham (“Blackham”), testified in his deposition that he discussed these incidents with Nielsen and requested that Nielsen c ease entering homes uninvited. According to Blackham, Nielsen promised that it wou ld never happen again. 1 On the morning of March 27, 1995, Nielsen was found, u ninvited, in the home of Moroni Feed employee Carol Blain (“Blain”) by the B lains’ daughter, who was home alone and still in her pajamas. A criminal tr espass complaint was filed2 Nielsen claims that because he entered into a nolo contendere agreement

regarding that entry, evidence of that charge shoul d not have been considered by the district court at summary judgment. While we a gree that evidence of a nolo contendere plea is not admissible as evidence underFed. R. Evid. 410, it is not the plea, but rather the charge by the Blain family of unwarranted entry that was relevant to the issue of whether Nielsen was engage d in a pattern of behavior of entering private homes without permission.

3 After Nielsen’s termination, Moroni Feed became aw are of eleven more such unauthorized entries by Nielsen into private h omes. Nielsen appeals the district court’s denial of a motion to strike porti ons of an affidavit recounting one of these incidents (the second entry of Mary Gibson ’s home) as “irrelevant and hearsay.” We find no abuse of discretion in the district court’s ruling. See Duffee v. Murray Ohio Mfg. Co. , 91 F.3d 1410, 1411 (10th Cir. 1996) (evidentiary rulings are generally reviewed for abu se of discretion).

4 The reference to drugs was a reference to prescrip tion painkillers. Nielsen denies that he ever told Olson that he had a drug problem. - 4 - against Nielsen as a result of that entry. 2 By the time of Nielsen’s ultimate termination, Moroni Feed had received a total of ei ght reports of Nielsen’s unauthorized entry into private homes in the Sanpet e County area. 3 Following the incident at the Blain home, the Moron i Feed Board of Directors met to discuss the situation. Olson toldthe Board that Nielsen had confided in him that Nielsen had a “drug problem.” 4 Some members of the Board subsequently met with a psychologist to discuss Nie lsen’s behavior; at this meeting members of the Board indicated that they pe rceived Nielsen to be suffering from a drug problem that was interfering with Nielsen’s performance of his duties as President of the company. Board Memb er David Bailey (“Bailey”) confided in co-op member Doug Neeley (“Neeley”) that he was actively seeking- 5 -

Nielsen’s ouster due to Nielsen’s deficient perform ance as President. From their conversation, Neeley received the impression that N ielsen had a drug problem, although Bailey did not explicitly say so. In his affidavit, Nielsen stated that members of th e Board told Nielsen that they believed that he had a drug problem, that they believed he was going into homes to steal drugs, and that the problem was set to be discussed at an upcoming Board meeting. Ultimately, the Board decided to ma ke Bailey acting President. Upon learning the news, Nielsen registered his disp leasure, and the Board suspended its decision. Nielsen then met with the Board to discuss the situation, at which time the Board indicated to Nielsen that i ts decision was based upon Nielsen’s unauthorized entry into private homes. T he Board neither confirmed nor denied that its decision was based upon a perce ived drug problem, but it requested that Nielsen be admitted to Dayspring, a drug treatment center, for evaluation. Nielsen agreed. Nielsen’s discharge r eport from Dayspring indicates that he had been admitted “for evaluation of a poss ible chemical dependency problem . . . . It was felt by his company that he was going into these homes to steal drugs, because he had a drug problem.” Afterthree days of evaluation, the Dayspring staff determined that Nielsen was not che mically dependent, and Nielsen was discharged. The Moroni Feed Board of D irectors was aware of this diagnosis.5 We do not reach the question of whether persons canbe sued in their

individual capacities under the ADA. See Land v. Midwest Office Tech., Inc. , 979 F. Supp. 1344, 1348 (D. Kan. 1997) (noting thatTenth Circuit has never ruled on this exact question but listing cases fromother courts and concluding that this circuit would probably not allow such sui ts under ADA without requisite showing that defendant met statutory definition of “employer”). - 6 - On April 17, Nielsen returned to Moroni Feed, reported his experiences at Dayspring to the Board, and was instructed to “get back to work.” However, the next day Blackham terminated Nielsen, informing Nie lsen that he was taking this action because Nielsen had lost the trust of the Bo ard, the managers, and the membership of the co-op “through his conduct of goi ng into people’s homes in an inappropriate fashion.” The Board ratified Blackha m’s termination of Nielsen. Nielsen simultaneously filed disability-based discr imination claims with the EEOC and the Utah Anti-Discriminatory Division. Af ter receiving a right-to-sue letter from the EEOC, Nielsen filed suit in federal district court, claiming discrimination in employment on the basis of a perc eived disability, in violation of the Americans with Disabilities Act (“ADA”) and the Utah AntiDiscriminatory Act. Nielsen also brought a myriad of other state-law claims, including wrongful termination, breach of contract, defamation, negligence, intentional infliction of emotional distress, and o thers. Nielsen named as defendants Moroni Feed as well as six Moroni Feed e mployees, including Blackham, Bailey, Blain, and Olson. 56 Nielsen does not contest the district court’s deci sion to deny jurisdiction

over his state law claims based upon the court’s fi nding that Nielsen’s ADA claim failed on summary judgment. - 7 - During discovery Moroni Feed deposed Nielsen’s heal thcare providers, and in the process collected evidence tending to show t hat Nielsen obtained large amounts of prescription painkillers from a number o f different doctors, that in doing so he may have falsely told some of those doc tors that he was not currently receiving painkillers from other sources, and that some of his treating physicians were concerned that Nielsen might have a dependencyon prescription painkillers. At the close of discovery both parties moved for su mmary judgment. The district court granted summary judgment to Moroni Feed on Ni elsen’s ADA claim, on the ground that Moroni Feed terminated Nielsen because of his home-entering activity and not because of a disability, real or p erceived. Because the ADA claim was the sole source of federal court jurisdic tion, the district court exercised its discretion and dismissed all of Nielsen’s state law claims as well. Nielsen appeals the district court’s grant of summary judgm ent to Moroni Feed on his ADA claim. 6

II. ANALYSIS A. Law The ADA provides:- 8 -

No covered entity shall discriminate against a qual ified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancem ent, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a). The statute defines the term “disability” as any of the following: (A) a physical or mental impairment that substantia lly limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. Id. § 12102(2). Thus, in passing the ADA, Congress intended to protect individuals from employment discrimination by emplo yers on the basis of an actual or perceived disability, provided that the d isability substantially limits or is perceived to limit substantially a major life activ ity. While it is clear that the ADA protects against dis crimination on the basis of a disability or a perceived disability, this cou rt and other circuit courts have wrestled with the relationship between a disabilityand conduct related to that disability. In Den Hartog v. Wasatch Academy , 129 F.3d 1076, 1088 (10th Cir. 1997), this court held that ordinarily conduct caus ed by a qualifying disability is protected by the ADA. Den Hartog involved a claim of mental illness, and in that context we explained that “[t]o permit employers ca rte blanche to terminate employees with mental disabilities on the basis of any abnormal behavior would7 The ADA defines disability in essentially the same terms as the

Rehabilitation Act. See Bolton v. Scrivner, Inc. , 36 F.3d 939, 942 (10th Cir. 1994); Collings v. Longview Fibre Co. , 63 F.3d 828, 832 n.3 (9th Cir. 1995). The ADA enlarges the scope of the Rehabilitation Act to cover private employers, but (continued...) - 9 - largely nullify the ADA’s protection of the mentall y disabled.” Id. at 1087. We noted, however, that the ADA’s protection of dis ability-caused conduct is subject to certain limitations found in the Act. First, a disabled employee “may be held to any performance criteria that are job-re lated and consistent with business necessity, so long as the disabled employe e is given the opportunity to meet such performance criteria by reasonable accomm odation.” Id. at 1086 n.8 (citing 42 U.S.C. § 12113(a)). Second, an employerneed only make reasonable accommodation, and need not make any accommodation that would constitute an “undue hardship.” Id. at 1087 (citing 42 U.S.C. § 12112(b)(5)(A)). Thir d, an employer may take action against an employee who po ses a “direct threat” to the health or safety of other individuals in the workpl ace. Id. (citing 42 U.S.C. § 12113(b)). Subject to these restrictions, which co ntemplate an employer dealing with an employee’s conduct, we concluded that the A DA’s general antidiscrimination provision, 42 U.S.C. § 12112(a), doe s not contemplate “a stark dichotomy between ‘disability’ and ‘disability-caus ed misconduct,’” but rather protects both. Den Hartog , 129 F.3d at 1088. One area, however, where the ADA and the Rehabilitation Act 7recognize a7 (...continued)

the legislative history of the ADA indicates that C ongress intended judicial interpretation of the Rehabilitation Act to be inco rporated by reference when interpreting the ADA. See Bolton , 36 F.3d at 943; Collings , 63 F.3d at 832 n.3; see also Maddox v. University of Tennessee , 62 F.3d 843, 846 n.2 (6th Cir. 1995) (“The ADA parallels the protection of the Rehabilit ation Act . . . .”). - 10 - dichotomy between a disability and disability-cause d misconduct is where the disability is related to alcoholism or illegal drug use. See Mararri v. WCI Steel,
Inc. , 130 F.3d 1180, 1182-83 (6th Cir. 1997) (ADA); Des pears v. Milwaukee County , 63 F.3d 635, 637 (7th Cir. 1995) (ADA and Rehabil itation Act); Maddox v. University of Tennessee , 62 F.3d 843, 847-48 (6th Cir. 1995) (Rehabilitati on Act); Collings v. Longview Fibre Co. , 63 F.3d 828, 833 (9th Cir. 1995) (ADA); Little v. F.B.I. , 1 F.3d 255, 258-59 (4th Cir. 1993) (Rehabilitatio n Act); cf. Taub v. Frank , 957 F.2d 8, 11 (1st Cir. 1992) (addiction-relatedpossession of heroin for distribution too attenuated to be covered by Re habilitation Act). Although these cases often state in general terms that a dis ability is protected while disability-caused misconduct is not, they all make this distinction in the context of alcoholism or illegal drug use. See Mararri , 130 F.3d at 1182-83; Despears , 63 F.3d at 637; Maddox , 62 F.3d at 847-48; Collings , 63 F.3d at 832-33; Little , 1 F.3d at 258-59; Taub , 957 F.2d at 11. We too have noted such a distinc tion when alcoholism or illegal drug use is involved. See Den Hartog , 129 F.3d at 1086 (ADA); Williams v. Widnall , 79 F.3d 1003, 1007 (10th Cir. 1996) (Rehabilitati on8 Only the Second Circuit has found otherwise, refusi ng to treat the status of

a disability differently from the conduct it causes in the context of alcoholism and drug addiction. See Teahan v. Metro-North Commuter R.R. Co. , 951 F.2d 511, 517 (2d Cir. 1991) (holding that termination for ab senteeism caused by alcoholism violates the Rehabilitation Act); Cushin g v. Moore , 970 F.2d 1103, 1108 (2d Cir. 1992) (applying Teahanin context of drug addiction). This court has specifically disapproved of this aspect of Teah an . See Williams , 79 F.3d at 1007. - 11 - Act). 8 The reason this dichotomy exists in the context of alcoholism and illegal drug use is simple: both the ADA and the Rehabilit ation Act clearly contemplate removing from statutory protection unsatisfactory c onduct caused by alcoholism and illegal drug use. Specifically, the ADA states that a covered entity may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee . . . . 42 U.S.C. § 12114(c)(4). The Rehabilitation Act si milarly removes unsatisfactory conduct caused by alcoholism from its purview, stat ing that the term “‘individual with a disability’ . . . does not include any indiv idual who is an alcoholic whose current use of alcohol prevents such individual fro m performing the duties of the job in question or whose employment, by reason of s uch current alcohol abuse, would constitute a direct threat to property or the safety of others.” 29 U.S.C. § 706(8)(C)(v); see also 42 Fed. Reg. 22,686 (1977) (Secretary of Department of- 12 -

Health, Education, and Welfare stating, in promulgating regulation under 29 U.S.C. § 706 of Rehabilitation Act, that an alcohol ic or drug addict may be held “to the same standard of performance and behavior” as others, and that, “while an alcoholic or drug addict may not be denied services or disqualified from employment solely because of his or her condition, the behavioral manifestations of the condition may be taken into account in deter mining whether he or she is qualified”). Thus, unsatisfactory conduct caused by alcoholism and illegal drug use does not receive protection under the ADA or the Re habilitation Act. However, the mere status of being an alcoholic or illegal dr ug user may merit such protection. See Williams , 79 F.3d at 1005 (alcoholism covered under Rehabilitation Act); Duda v. Board of Educ. of Fran klin Park Pub. Sch. Dist. No.
84 , 133 F.3d 1054, 1059 n.10 (7th Cir. 1998) (citing cases finding alcoholism covered under ADA); Evans v. Federal Express Corp. , 133 F.3d 137, 139 (1st Cir. 1998) (citing cases finding alcoholism covered unde r both statutes); Buckley v. Consol. Edison Co. of New York, Inc. , 127 F.3d 270, 273-74 (2d Cir. 1997) (alcoholism and drug addiction covered under ADA), vacated en banc on other grounds , 155 F.3d 150 (2d Cir. 1998); Mararri , 130 F.3d 1180, 1180 (6th Cir. 1997) (alcoholism covered under ADA). “[B]ecause C ongress only expressly permitted employers to hold illegal drug users and alcoholics to the same9 We note that in Siefken v. Village of Arlington Hei ghts , 65 F.3d 664, 665-

66 (7th Cir. 1995), the Seventh Circuit affirmed a grant of summary judgment against a plaintiff terminated on account of disabi lity-caused misconduct not related to alcoholism or drug addiction. However, as we observed in Den Hartog , see 129 F.3d at 1087, the Siefkencourt decided the case on the ground of proximate cause, holding that “but for” causation i s not enough under the ADA. The Seventh Circuit did not adopt the proposition t hat disability-caused misconduct is never protected under the ADA. - 13 - objective standards of conduct as other employees e ven though their disability causes misconduct or poor performance, Congress imp licitly did not intend to extend the same employer prerogative to employees w ith otherdisabilities.” Den Hartog , 129 F.3d at 1086 (citing Andrus v. Glover Constr. Co. , 446 U.S. 608, 616-17 (1980)) (emphasis original). As a result, w e observe that the statusconduct dichotomy exists only in the contexts of al coholism and illegal drug use. Outside of those contexts, as we held in Den Hartog , the ADA protects both the disability and the conduct caused by the disability . See 129 F.3d at 1088. 9 Significantly, while the mere status of being an il legal drug user may invoke protection under the ADA, that protection do es not extend to those “currently engaging in the illegal use of drugs.” 42 U.S.C. § 12114(a) (excluding from definition of “individual with a disability” i ndividuals currently engaged in illegal use of drugs); see also 29 C.F.R. § 1630.3 App. (“Employers . . . may discharge or deny employment to persons who illegal ly use drugs, on the basis of such use, without fear of being held liable for dis crimination.”); Shafer v. Preston10 Similarly, the Rehabilitation Act excludes current illegal drug users from

its coverage, see 29 U.S.C. § 706(8)(C)(i), but exempts from that ex clusion individuals satisfying criteria identical to 42 U.S .C. § 12114(b), see 29 U.S.C. § 706(8)(C)(ii). - 14 - Mem’l Hosp. Corp. , 107 F.3d 274, 280 (4th Cir. 1997) (“In light of t he plain statutory language, the relevant legislative history, and the EEOC’s interpretive guidelines, we conclude that an employee illegally using drugs in the weeks and months prior to discharge is a ‘current’ illegal us er of drugs for purposes of the ADA . . . .”). On the other hand, the ADA specific ally exempts from the exclusion of § 12114(a), and hence protects, an ind ividual who (1) has successfully completed a supervised drug re habilitation program and is no longer engaging in the illegal us e of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use; (2) is participating in a supervised rehabilitation program and is no longer engaging in such use; or (3) is erroneously regarded as engaging in such use , but is not engaged in such use. 42 U.S.C. § 12114(b). 10 Because § 12114(b)(3) excludes erroneous perceptionof illegal drug use from being disallowed as a disability under § 12114 (a), the ADA protects employees who are erroneously regarded as being current illegal drug users. See Buckley , 127 F.3d at 273 (stating that committee reports m ake clear that “‘[i]n removing protection for persons who currently use i llegal drugs, the Committee does not intend to affect coverage for individuals who have a past drug problem- 15 -

or are erroneously perceived as having a current drug problem’”) (quoting H.R. Rep. No. 101-485(II), at 77 (1990)), vacated en ban c on other grounds , 155 F.3d 150 (2d Cir. 1998); Collings , 63 F.3d at 832 (stating that the ADA protects “individuals who are erroneously regarded as using drugs when in fact they are not”) (citing § 12114(b)); Jones v. Correc tions Corp. of America , 993 F. Supp. 1384, 1386 (D. Kan. 1998) (“a plaintiff can e stablish that he is disabled within the meaning of the ADA by showing that he wa s regarded as being addicted to drugs, but was in fact not engaging in such drug use”); Herman v. City of Allentown , 985 F. Supp. 569, 576, 578-79 (E.D. Pa. 1997) (same); Ackridge v. Comm’r, Dept. of Human Servs. , Civ. A. No. 93-6783, 1994 WL 184421, at *1-2 (E.D. Pa. May 5, 1994) (noting thatADA coverage extends to employee who is erroneously regarded as engaging inillegal drug use); Sharon Dietrich et al., Work Reform: The Other Side of We lfare Reform , 9 Stan. L. & Pol’y Rev. 53, 55 (1998) (same). However, the erro neous perception of being an illegal drug user is to be treated like any other p erception of a disability, and is only to be considered a qualifying disability if th e employer perceives the disability to substantially limit a major life acti vity. See 42 U.S.C. § 12102(2) (definition of disability includes being regarded a s having “a physical or mental impairment that substantially limits one or more ma jor life activities of such individual”); 29 C.F.R. § 1630.3, App. (noting thatindividuals who are11 The term “major life activities” includes “‘functi ons such as caring for

oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working .’” MacDonald v. Delta Air Lines, Inc. , 94 F.3d 1437, 1444 (10th Cir.1996) (quoting 29 C.F.R. § 1630.2(i)) (e mphasis original). The Supreme Court recently added to this list the majorlife activity of sexual reproduction. See Bragdon v. Abbott , 118 S. Ct. 2196, 2205 (1998). For a physical or mental impairment to be “substantially limiting” the individual must be: “(i) Unable to perform a major life activity th at the average person in the general population can perform; or (ii) Significant ly restricted as to the condition, manner or duration under which [the] individual canperform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perfor m that same major life (continued...) - 16 - erroneously considered by their employers to be ill egally using drugs “are still required to establish that they satisfy the require ments of [the statutory and regulatory] definitions in order to be protected bythe ADA.”); H.R. Rep. No. 101-485 (II), at 77 (1990), reprinted in1990 U.S.C.C.A.N. 303, 360 (noting that individuals with perceived drug use dependence may satisfy definition of disability by proving that they “are regarded as having a disability, as ‘disability’ has been defined under section 504 [of the Rehabili tation Act] and [the ADA] (i.e., a physical or mental impairment that substan tially limits a major life activity)”); see also E.E.O.C. v. Exxon Corp. , 973 F. Supp. 612, 613-14 (N.D. Tex. 1997) (stating that “individual who falls unde r one of the subcategories of 42 U.S.C. § 12114(b) is not automatically a ‘qualified person with a disability’ for purposes of protection under the ADA,” but “must pr ove they suffer from a ‘disability’ as that term is defined in 42 U.S.C. § 12102(2)”) (citations omitted). 1111 (...continued)

activity.” 29 C.F.R. § 1630.2(j)(1).

12 There is no doubt that, under the ADA, illegal drug use includes the illegal misuse of pain-killing drugs which are controlled by prescription as well as (continued...) - 17 - Therefore, Nielsen could avoid summary judgment onl y by presenting evidence to the district court that, when taken in the light most favorable to Nielsen, would have allowed a reasonable jury to co nclude (1) that Nielsen had a perceived disability protected under the ADA becaus e Moroni Feed erroneously believed he was illegally using drugs and that the perceived use was severe enough to substantially limit one or more of his ma jor life activities, and (2) that Moroni Feed terminated Nielsen on the basis of this perceived disability or conduct erroneously attributed to it.

B. Application Nielsen has failed to present evidence showing a ge nuine dispute of material fact in this regard. First, Nielsen has f ailed to produce any evidence that Moroni Feed erroneously believed he was illegally u sing drugs which use was severe enough to substantially limit one or more of his major life activities. While Nielsen did present evidence that at least so me decision-makers at Moroni Feed at some point were concerned about his behavio r and about his perceived addiction to prescription painkillers, 12 Nielsen proffered no evidence that anyone12 (...continued)

illegal street drugs like cocaine. See 29 C.F.R. § 1630.3, App. (“Illegal use of drugs refers both to the use of unlawful drugs, suc h as cocaine, and to the unlawful use of prescription drugs.”). - 18 - at Moroni Feed believed this perceived drug addicti on was severe enough to substantially limit one or more of his major life a ctivities. Indeed, Nielsen failed to state explicitly what major life activities, if any, Moroni Feed regarded as substantially limited by the perceived drug addicti on. Nielsen simply argued that Moroni Feed “fired him due to his perceived disabil ity in violation of the ADA.” Hence, in terms of substantial limitation of a majo r life activity, the most we can infer from Nielsen’s argument is a contention that Moroni Feed fired him because it believed he suffered from a drug addiction sever e enough to prevent him from performing his duties as President of the co-op. H owever, such a contention, even if true, falls well short of establishing thatMoroni Feed regarded Nielsen as having a disability substantially limiting the only major life activity implicated by Nielsen’s argument—namely, working. In Sutton v. United Air Lines, Inc. , 130 F.3d 893 (10th Cir. 1997), we noted that “‘[t]he inability to perform a single, p articular job does not constitute a substantial limitation in the major life activity o f working.’” Id. at 904 (quoting 29 C.F.R. § 1630.2(j)(3)(i)) (other citations omitt ed). Moreover, “[a]n employer does not necessarily regard an employee as substant ially limited in the major life13 When an individual claims substantial limitation in the major life activity

of working, three additional factors also may be co nsidered: (continued...) - 19 - activity of working simply because it believes thatindividual is incapable of performing a particular job.” Id. Rather, in order [t]o demonstrate that an impairment “substantially limits” the major life activity of working, an individual must show “ significant[] restrict[ion] in the ability to perform either a cl ass of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. Bolton v. Scrivner, Inc. , 36 F.3d 939, 942 (10th Cir. 1994) (quoting 29 C.F .R. § 1630.2(j)(3)(i)) (emphasis original); accordSutton , 130 F.3d at 904; Mendoza v. Borden, Inc. , No. 97-5121, 1998 WL 751038, at *2 (11th Cir. Oct . 28, 1998); Colwell v. Suffolk County Police Dept. , No. 97-9019, 1998 WL 718358, at *7 (2d Cir. Oct. 15, 1998); Gutridge v. Clure , 153 F.3d 898, 900 (8th Cir. 1998); Skorup v. Modern Door Corp. , 153 F.3d 512, 514 (7th Cir. 1998); Deas v. River West,
L.P. , 152 F.3d 471, 481 (5th Cir. 1998); Cline v. Wal-M art Stores, Inc. , 144 F.3d 294, 302-03 (4th Cir. 1998); Deane v. Pocono Med. C tr. , 142 F.3d 138, 144 n.7 (3d Cir. 1998); McKay v. Toyota Motor Mfg., U.S.A., Inc. , 110 F.3d 369, 372 (6th Cir. 1997); Thompson v. Holy Family Hosp. , 121 F.3d 537, 540 (9th Cir. 1997); John F. Wagner, Annotation, What Constitutes Substantial Limitation on Major Life Activity of Working for Purposes of Amer icans with Disabilities Act , 141 A.L.R. Fed. 603, § 2(a) (1997). 13 In other words, “‘[a]n impairment must13 (...continued)

(A) [t]he geographical area to which the individual has reasonable access; (B) [t]he job from which the individual has been di squalified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within th at geographical area, from which the individual is also disqualified beca use of the impairment (class of jobs); and/or (C) [t]he job from which the individual has been di squalified because of an impairment, and the number and types of otherjobs not utilizing similar training, knowledge, skills or ab ilities, within that geographical area, from which the individual is als o disqualified because of the impairment (broad range of jobs in v arious classes). Bolton , 36 F.3d at 943 (quoting 29 C.F.R. § 1630.2(j)(3)( ii)). - 20 - substantially limit employment in general, not mere ly the particular job that the plaintiff may wish to hold.’” Sutton , 130 F.3d at 904 (quoting Hileman v. City of Dallas , 115 F.3d 352, 354 (5th Cir. 1997)).

Therefore, in order to establish a disability underthe ‘regarded as’ prong of the ADA with respect to the major life activity of working, an individual must show that the employer regarded him or her as being substantially limited in performing ei ther a class of jobs or a broad range of jobs in various classes. Id. Because Nielsen merely presented evidence suggest ing that Moroni Feed no longer believed him capable of performing his dutie s as President of the co-op, but presented no evidence whatsoever that Moroni Fe ed believed any perceived illegal drug addiction on his part significantly re stricted his “ability to perform either a class of jobs or a broad range of jobs in various classes,” Bolton , 36 F.3d at 942, we must affirm the district court’s entry o f summary judgment. See- 21 -

Sutton , 130 F.3d at 904; cf. Siemon v. AT&T Corp. , 117 F.3d 1173, 1176 (10th Cir. 1997) (where “it is clear that [the plaintiff] has fallen far short of alleging he is substantially limited in performing a class of j obs or a broad range of jobs in various classes,” the district court “correctly gra nted summary judgment”); Bolton , 36 F.3d at 944 (affirming summary judgment where plaintiff “failed to produce evidence showing a significant restriction in his ‘ability to perform either a class of jobs or a broad range of jobs in various classes’”) (quoting 29 C.F.R. § 1630.2(j)3)(i)); Welsh v. City of Tulsa , 977 F.2d 1415, 1419 (10th Cir. 1992) (affirming summary judgment on perceived disabilityclaim under Rehabilitation Act where, inter alia , plaintiff “failed to present evidence” that he wo uld be precluded not only from performing “the specific jo b” for which he applied, “but a wide range of jobs,” if he had disability as perc eived by defendant). In addition to Nielsen’s failure to advance evidenc e that he had a qualified perceived disability because Moroni Feed believed h e had an illegal drug addiction severe enough to substantially limit the major life activity of working, Nielsen also failed to advance evidence that Moroni Feed fired him on the basis of any perceived disability or conduct attributed t o it. On this ground summary judgment also was proper. While, as noted, Nielsendid present evidence that some at Moroni Feed at some point believed he was a ddicted to prescription painkillers, the record is clear that Nielsen was u ltimately discharged, not because- 22 -

of an erroneous perception that he was addicted to prescription painkillers, but because of his unexplainedconduct in entering uninvited into the homes of co

workers and co-op participants in the small communi ty where Moroni Feed was located. It is undisputed that for a considerable time Moron i Feed tried to work with Nielsen after receiving information that caused som e of Moroni Feed’s directors to believe he was addicted to painkillers. The co- op also directed him to a drug treatment center for evaluation. During none of th is time was he discharged. It was only afterthe evaluation came back from Dayspring that he wa s notaddicted to drugs and thus that his bizarre conduct of going into homes throughout the community uninvited could notbe explained by drug addiction that Nielsen was terminated. The timing of Nielsen’s discharge, and the references in the record about the deliberation of the Board, as well as the reasons articulated to Nielsen himself for the discharge, all make it clear beyond peradventure that Nielsen was discharged for his conduct, and that this conduct, at the time of his discharge, was not erroneously attributed to illegal drug use. Si mply put, Nielsen’s conduct was potentially quite disruptive to Moroni Feed, and wh en it was neither stopped nor explained, Moroni Feed determined it could no longe r trust or tolerate a president who engaged in such conduct. Therefore, because Ni elsen has failed to produce any evidence that Moroni Feed fired him on the basi s of an erroneously perceived- 23 -

disability based on illegal drug use or conduct bel ieved to be so caused, the district court properly granted Moroni Feed’s summary judgment motion. Cf. 42 U.S.C. § 12112(a) (“No covered entity shall discrim inate against a qualified individual with a disability because of the disability of such individual . . . .”) (emphasis added); Maddox , 62 F.3d at 848-49 (affirming summary judgment dismissing college football coach’s ADA and Rehabil itation Act claims after finding coach’s criminal conduct and bad publicity surrounding it was “sufficient to motivate the discharge,” because “[i]t is obviou s that . . . [the coach] would be representing not only the team but the university.” ).

CONCLUSION The judgment of the district court is AFFIRMED.