* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### JAN 30 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

GEORGE GREGORY JACKSON,

Plaintiff-Appellant,

v. ANALYST INTERNATIONAL CORPORATION; ANDERSEN CONSULTING; YELLOW TECHNOLOGY SERVICES, INC.,

Defendants-Appellees. No. 97-3076 (D.C. No. 96-2055-KHV) (D. Kan.)

ORDER AND JUDGMENT *

Before BRORBY , BARRETT , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff-appellant George Gregory Jackson appeals from the district court’s orders granting summary judgment to defendants-appe llees Analyst International Corp. (AIC), Andersen Consulting (Andersen) and Yel low Technology Services (YTS). We affirm. Plaintiff suffered a broken left tibia and clavicle in an automobile accident in 1984. He claims that as a result of his acciden t, he cannot work while wearing a tie, and also that he needs to wear loose-fitting clothing around the clavicle area and shoes that accommodate his feet. In February 1995, AIC hired plaintiff as a computerconsultant. AIC is a contract programming service which provides temporary computer programming services to its clients. AIC assigned plaintiff to Anderson on a temporary basis. Anderson ran a project known as the BASICS project for YTS. Plaintiff worked on the BASICS project at the YTS facility from February 6, 1995 until June 6, 1995, when AIC removed him from the project and terminated his consulting

contract. Andersen and YTS employees are expected to wear dre ss shirts and ties to work. YTS employees may wear “business casual” att ire on Fridays and more casual dress on the last Friday of the month. FromFebruary 6, 1995 to March 13,-3-

1995, plaintiff wore a dress shirt and a loose tie to work. He also wore loose fitting pants and casual leather shoes with thick c ushioned socks. On March 13, 1995, plaintiff brought his supervisor at YTS a not e from his doctor in which the doctor recommended that plaintiff be allowed to wea r more casual type shirts in order not to irritate the collar bone fracture. Af ter receiving this note, defendants did not require plaintiff to wear a tie to work. Plaintiff and defendants differ on what happened ne xt. Plaintiff insists that he was well-groomed throughout the remainder of his employment, wearing white button-down shirts or polo shirts except on Fridays , when more casual attire was permitted. Defendants claim that plaintiff began w earing Hawaiian print shirts, tennis shoes and wrinkled pants to work. AIC removed plaintiff from work at YTS, in part bec ause his business attire was inappropriate by Andersen and YTS standards. A IC attempted to locate additional work for plaintiff, but was unable to do so, given his style of dress. Eventually, AIC terminated plaintiff’s employment. Thereafter, plaintiff filed this suit, contending that defendants’ actions in termin ating his employment violated the Americans with Disabilities Act (ADA), 42 U.S.C . §§ 12001-12213. “We review a grant of summary judgment de novo. We apply the same standard under Fed. R. Civ. P. 56(c) used by the di strict court: we determine whether a genuine issue of material fact was in dis pute, and, if not, whether the-4-

substantive law was correctly applied.” Den Hartog v. Wasatch Academy , 129 F.3d 1076, 1081 (10th Cir. 1997) (citations omitted ). To establish a claim under the ADA, a plaintiff mus t demonstrate: (1) that he is a disabled person within the meaning of the A DA; (2) that he is qualified; that is, that he can perform the essential function s of the job with or without reasonable accommodation (which he must describe); and (3) that the employer discriminated against him in terminating his employ ment because of his alleged disability. See Sutton v. United Air Lines, Inc. , 130 F.3d 893, 897 (10th Cir. 1997). The district court found that plaintiff fai led to establish the first two criteria of this test. The ADA defines a “disability” as “(A) a physical o r mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being re garded as having such an impairment.” 42 U.S.C. § 12102(2). Plaintiff cont ends that he qualifies as “disabled” under both (A) and (C). We first consider whether plaintiff’s alleged disab ility substantially limits one or more of his major life activities. The ADA does not define “major life activities;” however, the EEOC regulations that imp lement the statute identify them as “functions such as caring for oneself, perf orming manual tasks, walking, seeing, hearing, speaking, breathing, learning, andworking.” 29 C.F.R.1 Plaintiff argues before this court that these sport s were listed on his resume

as hobbies since 1980, before his accident, and mer ely carried forward. This argument is frivolous in light of his deposition te stimony that the resume accurately reflected his hobbies as of 1994-95, andthat he continues to play many of the sports listed. Appellant also likens his sp orts activities to those of a disabled participant in the Special Olympics. This argument is also frivolous; nothing in the record indicates that plaintiff part icipates in sports as a disabled or handicapped person. -5- § 1630.2(i). In order for a physical or mental imp airment to be “substantially limiting” the individual must be: (i) Unable to perform a major life activity that th e average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration un der which the average person in the general population can perform that same major life activity. 29 C.F.R. § 1630.2(j)(1). The district court found that plaintiff failed to d emonstrate that he is substantially impaired in a major life activity oth er than work. It noted that he admitted his ability to care for his personal hygie ne, food preparation, shopping and house cleaning without assistance. Further, he participates in sports such as racquetball and golf, which are listed as hobbies o n his resume. 1 The evidence supports the district court’s conclusions. The evidence demonstrates plaintiff can perform all relevant major life activities. He contends, however, that his abilityto perform such activities is-6-

significantly restricted because he can only do so while dressed casually. Plaintiff testified that his collarbone pain interf eres with his major life activities when he is compelled to wear a dress shirt and tie; that he cannot pay attention to what he sees or what he hears, and cannot learn bec ause he is in such pain. He points to the note from his physician, recommending that he be allowed to wear “more casual type shirts” in order to avoid irritat ing his collar bone fracture. Assuming that plaintiff thereby made a minimally su fficient showing of impairment to survive summary judgment, he has fail ed to show that he must perform any major life activities outside the work environment while dressed in a shirt and tie. We therefore conclude that the only major life activity even remotely affected by plaintiff’s alleged disability is his ability to work. The regulations specify that with respect to the ma jor life activity of working, the term “substantially limits” means “sig nificantly restricted in the ability to perform either a class of jobs or a broa d range of jobs in various classes as compared to the average person having comparable training, skills and abilities.” 29 C.F.R. § 1630.2(j)(3)(i). Specific factors to be considered, in addition to those applicable to life activities gen erally, include: (A) The geographical area to which the individual h as access; (B) The job from which the individual has been disq ualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within th at geographical area,-7-

from which the individual is also disqualified because of the impairment (class of jobs); and/or (C) The job from which the individual has been disq ualified 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). Id. § 1630.2(j)(3)(ii). Plaintiff has failed to present evidence showing th at his need to dress casually has significantly restricted his ability t o perform a class of jobs or a broad range of jobs in various classes. Plaintiff points to an expert report showing that one-third of computer programmer posit ions in the Kansas City metropolitan area require the programmer to wear a shirt and tie. He presents no evidence, however, that his access to jobs is limit ed to the Kansas City area, nor does he show that he is unable to perform other job s within or outside the class of computer programmer. No reasonable jury could conc lude that plaintiff has “a physical or mental impairment that substantially li mits one or more of [his] major life activities,” including work. Plaintiff argues, alternatively, that he is disable d because he is “regarded as having” an impairment which substantially limits hi s ability to work. This argument requires plaintiff to show that he: (1) Has a physical or mental impairment that does n ot substantially limit major life activities but is treated by a cov ered entity as constituting such limitation;-8-

(2) Has a physical or mental impairment that substantially limits major life activities only as a result of the attit udes of others toward such impairment; or (3) Has none of the impairments defined in [29 C.F. R. § 1630.2(h)] but is treated by a covered entity as having a subs tantially limiting impairment. 29 C.F.R. § 1630.2(l). In determining whether a plaintiff is regarded as h aving an impairment which substantially limits his ability to work, we focus on the impairment’s or perceived impairment’s effect upon the attitudes of others. See Sutton , 130 F.3d at 903. The plaintiff must show “that the employerregarded him or her as being substantially limited in performing either a class of jobs or a broad range of jobs in various classes.” Id. at 904. The district court correctly determined t hat plaintiff failed to present evidence of this factorpertaining to Andersen and YTS. Although he showed that they allowed him to go with out a tie, this fact alone is insufficient to raise a triable issue of fact conce rning whether Andersen and YTS regarded him as disabled. AIC, on the other hand, terminated plaintiff’s empl oyment because it had no other clients who would allow him to work in cas ual attire. Moreover, Dave Henneberg, plaintiff’s manager at AIC, believed pla intiff could not perform his job properly if required to wear a tie. Plaintiff points to no evidence, however, that AIC regarded him as significantly restricted i n his ability to perform a class2 Plaintiff has submitted several additional medical exhibits which were not

before the district court when it ruled on the summ ary judgment motions. In reviewing a ruling on summary judgment, we will notconsider evidence not before the district court. See John Hancock Mut. Life. Ins. Co. v. Weisman , 27 F.3d 500, 506 (10th Cir. 1994). We therefore deny plaintiff’s motion to supplement the record. Defendants have moved to strike the additional exhibits submitted by plaintiff. Our denial of plaintiff’s motion to supplement the record makes it unnecessary for us to grant the relief sou ght by defendants; accordingly, we also deny their motions to strike. -9- of jobs or a broad range of jobs in various classes compared to the average person. Therefore, plaintiff fails to show that AI C regarded him as disabled. In light of our conclusion that plaintiff has faile d to show that he is disabled, we need not consider whether he meets the other criteria to establish a claim under the ADA. The judgment of the United St ates District Court for the District of Kansas is AFFIRMED. All pending motion s are DENIED. 2

Entered for the Court

James E. Barrett Senior Circuit Judge