The Honorable Harry 1 

## United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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___________ * Appellant, * * * Transport Company, Inc.; Ellsworth Western District of Arkansas * * [UNPUBLISHED] * * Appellees.

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Filed: November 9, 1998
Befo McMILLIAN, RICHARD S. ARNOLD, and MORRIS SHEPPAR ARNOLD, Circuit Judges.
PER CURIAM. t Court for the Western District of Arkansas granting summary judgment for defendants-2-

Transp ort Company, Inc. (Transport), and Ellsworth Motorfreight Lines, Inc
. (Ell sworth), on Murphree & s claim of employment discrimination in violation of th e Ameri cans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-12213. Fo r reversal, Murphree contends that the district court erred in concluding that Murphre e failed to sho w he was “disabled” as that term is defined by the ADA. For the reasons discussed below, we affirm the judgment of the district court. While employed by Transport, Murphree injured his back and neck in July 1992, had a cervical fusion performed in January 1993, and re-injured his back and neck i n May 1994. Murphree alleged that, because of his resulting disability, Transpor t discriminatedagainst him in the terms of his employment and denied him reasonable accommo dations. Murphree claimed that after Ellsworth acquired his department i n November 1994, it forced Murphree to resign because of his disability.
We review the grant of summary judgment de novo. The question before th e district court, and

this court on appeal, is whether the record, when viewed in the light most favorable to the

non-moving party, shows that there is no genuine issue as to any material fact and that th e moving party is entitled to judgment as a matter of law. Fed. R. Civ . P. 56(c). As to the first element of his ADA claim, Murphree was required to show that he had a disability within the meaning of the ADA. See Gutridge v. Clure , 153 F .3d 898, 900 (8th Cir. 1998). Murphree was therefore required to demonstrat e that hi s physical impairment “substantially limit[ed]” at least one of his “major lif e activities.” 42 U.S.C. § 12102(2)(A).
We conclude Murphree failed to demonstrate that his physical impairmen t substantially limited in his ability to perform any major life activity. See 29 C.F.R
. § 1630.2(i) & Part 1630 app. § 1630.2(i) (1997) (defining “ major life activities”); Snow v. Ri dgeview Med. Ctr. , 128 F.3d 1201, 1206-07 (8th Cir. 1997) (definin g “substantially limits”). Murphree & s evidence on this issue consisted of the affidavit of Dr. Jim Moore, a neurosurgeon, who evaluated Murphree after examining him once in-3-

October 1996 and reviewing his medical records. Dr. Moore attested that since June 1992 Mur phree had a “physical impairment” substantially limiting him in “major lif e activities,” including lifting, driving, and carryin g, and that after the May 1994 re-injury he was substantially limited in additional “major life activities,” including writing and grasping. Even assuming Dr. Moo re & s affidavit could have supported Murphree & s claimed disability, cf. Jackson v. Anchor Packing Co. , 994 F.2d 1295, 1304 (8th Cir. 1993 ) (conclusory affidavits, even from expert witnesses, do not provide basis for denyin g summary judgment motion), any probative value in such affidavit was negated by Dr. Mo ore & s later deposition testimony that he could render opinions about Murphree & s li mitations and restrictions only as of October 1996 and “[a]nything else would b e supposition”; that Murphree & s condition could hav e progressively worsened prior to the October 1996 examination; and that Dr. Moore could not render an opinion as t o appropriate restrictions in 1995 without having examined Murphree in May 1994, when he w as re-injured. See Kneibert v. Thomson Newspapers, Mich., Inc. , 129 F.3d 444, 455 (8th Cir. 1997) (to survive summary judgment, plaintiff “must provide sufficient, probative evidence” permitting fact-finder to rule in plaintiff & s favor, rather tha n engaging in speculation). Accordingly, we affirm the judgment of the district court. RICHARD S. ARNOLD, Circuit Judge, concurring in the result.
A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.