* This order and judgment is not binding precedent, e xcept under the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

### MAY 16 2000 

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

RALPH SPRAGGS,

Plaintiff-Appellant,

v. SUN OIL COMPANY, a corporation in the State of Delaware,

Defendant-Appellee. No. 97-5194 (D.C. No. 96-CV-275) (N.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY , BRISCOE , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision 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.-2-

Plaintiff Ralph Spraggs appeals from a district cou rt order granting summary judgment in favor of defendant Sun Oil Comp any (Sun Oil) in this employment discrimination action under the American s With Disabilities Act (ADA), 42 U.S.C. § 12101, et seq ., and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq. On de novo review, see Siemon v. AT&T Corp. , 117 F.3d 1173, 1175 (10th Cir. 1997), we affirm, though in one respect for a different reason than that stated by the district court, see Stat-Tech Int’l Corp. v. Delutes (In re Stat-Tech Int’l Corp.) , 47 F.3d 1054, 1057 (10th Cir. 1995) (“[W]e are free to affirm a grant of summary judgment on g rounds different than those used by the district court if the record is suffici ent to support such ground.”). Plaintiff was a longtime employee of Sun Oil, perfo rming various tasks over the years. In 1988, he became the locksmith at Sun Oil’s Tulsa Oklahoma refinery. In this capacity, he repaired and built “Best Locks” and other file and cabinet locks, worked on radios, security cards, lo ckout/tagout systems, security and safety orientation, and video production, and s erved on the fire brigade. In 1992, Sun Oil began a reorganization. By the en d of 1993, over a hundred employees had been dismissed and a third of the refinery shut down. Because of these measures, Sun Oil’s manager of hea lth, safety and security believed there would be fewer locks and radios to m aintain. In addition, Sun Oil decided to partially adopt use of a different type of lock for the lockout/tagout-3-

system, expected to result in less locksmith work a s well. Sun Oil decided to redistribute plaintiff’s duties among other employe es and, in November 1993, reassigned him to a job at its Lube Service Center Warehouse on the “pick line,” a night shift position for less pay. The new job req uired him to lift and move pallets to provide products for Sun Oil’s customers . In late December 1993, he was injured while moving a pallet. As a result, he went on short term disability leave from January 24 until mid-August 1994. In th e interim, he had surgery on his neck to repair the injury. On August 1, 1994, plaintiff was released by his su rgeon, Dr. Letcher, to full-time, unrestricted activity. A week later, ho wever, Sun Oil’s physician, Dr. Campbell, signed a return to work slip imposing res trictions of no climbing, no lifting over fifteen to twenty pounds, limited neckextension, and the ability to alternate sitting and standing. On August 15, 1994 , plaintiff returned to work at the Lube Service Center as a spout packer, but ceas ed working due to pain within three days. At that time, Dr. Campbell indicated h e would not be released to work until further notice. On December 8, 1994, Dr. Campbell released plaintif f to work with a twenty-five pound limit on lifting, pushing and pul ling, no ladder climbing, and use of stairs with handrails and walkways only. Th ese restrictions were expected to remain in effect for three months. Plaintiff re turned to the Lube Service Center-4-

as a barrel filler. In mid-March 1995, Dr. Campbel l continued the prior work restrictions and, two weeks later, plaintiff went b ack on disability leave. Finally, on October 23, 1995, Dr. Campbell again re leased plaintiff to work, this time limiting him to work “he can do that he has complete control [over] and does not require any bending or lifting and he can take breaks when needed.” Absent such a job, Dr. Campbell granted m edium term disability. Plaintiff never returned to work. He was terminate d in July of 1996, pursuant to company leave policy, because he did not qualify fo r long term disability.
ADA Claim To establish a prima facie case of discrimination u nder the ADA, plaintiff had to show (1) he is disabled within the meaning o f the ADA, (2) he is qualified, i.e., able to perform, with or without reasonable a ccommodation (which he must describe), the essential functions of the job, and (3) his employer terminated him due to the disability. See Pack v. Kmart Corp , 166 F.3d 1300, 1303 (10th Cir. 1999). The district court granted summary judgmentfor Sun Oil, because, it held, plaintiff had not demonstrated a triable issue as t o the existence of any disability and, therefore, had failed to establish the first p rong of a prima facie case. For present purposes, the term “disability” denotes a physical impairment substantially limiting one or more major life activities. See 42 U.S.C. § 12102(2) (defining “disability”). “Major life activities” i nclude basic functions such as-5-

seeing, hearing, sitting, standing, walking, liftin g, and reaching, as well as the broader activity of working. See Pack , 166 F.3d at 1304. Indeed, the former are clearly differentiated from the latter in sequence and substance of analysis. See Davoll v. Webb , 194 F.3d 1116, 1135 & n.12 (10th Cir. 1999) (noti ng functional activities are analyzed first, and if no substantia l limitation is found as to these, inquiry proceeds to work limitations, which implicate an additional set of factors to be considered). Plaintiff does not claim he is disabled with respec t to work, but in his basic abilities to lift, stoop, bend, and stand in one pl ace for an extended period. To demonstrate a substantial limitation regarding suchactivities, he must show he is either unable to perform them or is “significantly restricted as to the condition, manner, or duration under which [he] can perform [them] as compared to the condition, manner, or duration under which the aver age person in the general population can perform [them].” Pack , 166 F.3d at 1305 (quoting 29 C.F.R. § 1630.2(j)(1)). Three factors inform this assessm ent: “(1) the nature and severity of the impairment; (2) the duration or expected dur ation of the impairment; and (3) the permanent long term impact, or the expected long term impact of or resulting from the impairment” Id. (citing 29 C.F.R. § 1630.2(j)(2)). These must be considered on an individualized, case-by-case basis. See id. at 1304.-6-

The district court did not assess plaintiff’s alleg ed disability in accordance with the above authorities. Instead, it focused on plaintiff’s ability to work, concluding that he was not disabled “because his impairment does not prevent him from performing a class of jobs or a broad rang e of jobs in various classes.” District Court Order at 15-18 (applying regulations and case law addressing work limitations). In keeping with the sequential analysis explained in Davoll , 194 F.3d 1135 & n.12, if plaintiff demonstrated a subst antial limitation on a major life activity of the functional sort he asserted, it wou ld have been error for the district court to reject his ADA claim on the basis of facto rs relevant only to work impairments. See Lowe v. Angelo’s Italian Foods, Inc. , 87 F.3d 1170, 1173-74 (10th Cir. 1996) (reversing summary judgment for de fendant where plaintiff had shown genuine issue of material fact regarding subs tantial limitation on major life activity of lifting, and noting it was “unnecessaryto consider the additional factors [for work limitations] relied upon by the d istrict court [to deny existence of disability]”). We need not decide whether plaintiff’s functional i mpairments constitute a disability, however, as there is another dispositiv e deficiency in his ADA claim, regarding accommodation, which has been addressed b y the parties and is conclusively established on our record. Plaintiff contends Sun Oil should have accommodated his impairments by (1) reassigning himback to his position as-7-

locksmith, (2) modifying his job at the Lube Servic e Center to enable him to work there, or (3) reassigning him to another, vacant po sition. Because, as explained below, plaintiff has failed to demonstrate a triabl e issue as to whether any of these options were possible or required, the entry of summary judgment for Sun Oil was proper. See White v. York Int’l Corp. , 45 F.3d 357, 361-63 (10th Cir. 1995). Plaintiff’s first suggested accommodation, involvin g a return to a position which no longer exists and to duties which other employees now perform, clearly fails as a matter of law. Reassignment may be a re quired accommodation under the ADA. Smith v. Midland Brake, Inc. , 180 F.3d 1154, 1167 (10th Cir. 1999). However, “[i]t is not reasonable to require an empl oyer to create a new job for the purpose of reassigning an employee” and, thus, “[r] eassignment is limited to existing jobs within the company.” Id. at 1174 (emphasis added); see Terrell v.
USAir , 132 F.3d 621, 626 (11th Cir. 1998) (holding emplo yer cannot be required to re-create position that no longer exists). Further, “it is not reasonable to require an employer to bump another employee in ord er to reassign a disabled employee” and, thus, the obligation to reassign can apply only to duties of “a

vacant position.” Smith , 180 F.3d at 1174-75 (emphasis added). The second suggested accommodation, which plaintiff mentions only in passing, relates to modification of his duties at t he Lube Service Center. This1 “Scattered statements” or “perfunctory complaints” may well “fail to frame

and develop an issue sufficient to invoke appellate review.” Murrell v. Shalala , 43 F.3d 1388, 1389 n.2 (10th Cir. 1994). -8- argument, if indeed it is one, 1 fails for lack of substantiation. Plaintiff insis ts he cannot perform such duties for a host of reasons, i ncluding his lifting and bending limitations, inability to stand for extended period s, and need to control work pace.
See Opening Br. of Plaintiff-Appellant at 12-15, 23-24. Yet he states he might have stayed at the Lube Service Center had Sun Oil “allow[ed] him to have more assistance at work.” Id. at 27. This conclusory assertion--with no descrip tion of the assistance involved, see Pack , 166 F.3d at 1304--cannot satisfy plaintiff’s burden to show an effective accommodation was possible. See White , 45 F.3d at 362-63 (holding “bald conclusion” that plaintiff co uld perform job “with reasonable accommodation” insufficient to defeat summary judgment); Jackan v. New York State Dep’t of Labor , 205 F.3d 562, 566 (2d Cir. 2000) (“The burden of persuasion on the existence of an effective accommo dation is not satisfied with mere speculation.” (quotations omitted)). Finally, as for reassignment generally, “[t]o survi ve summary judgment, Plaintiff must establish that he was qualified to p reform an appropriate vacant job which he must specifically identify and show was av ailable within the company at or about the time he requested reassignment.” Taylor v. Pepsi-Cola Co. , 196 F.3d 1106, 1110 (10th Cir. 1999) (citing Smith , 180 F.3d at 1179). In this regard,-9-

plaintiff relies on the affidavit of former co-work er Buster Genson, who stated there had been openings in the following positions: unit mechanic, maintenance equipment operator, lab technician, and crude oil t ruck driver. However, the affidavit of Sun Oil human resource manager Robert Schaefer stated these jobs all entailed physical requirements precluded by plainti ff’s asserted limitations. With respect to crude oil truck drivers--the only positi on for which plaintiff makes any effort to argue his qualifications--Schaefer statedsuch drivers lift, carry and push hoses and other items weighing in excess of twenty- five pounds, stoop, bend and climb onto the top of tanks and trucks, and cannot set their own pace to perform their duties. In opposition, plaintiff refers the court to his own affidavit, which states it would be easy to set his own pace as a tr uck driver, but does not dispute any of the other disqualifications noted by Mr. Sch aefer. Hence, it remains uncontroverted on our record that “[e]ach position required physical duties that Plaintiff admits he was unable to perform,” and, th erefore, summary judgment on the ground that “reassignment to a vacant position was not a reasonable accommodation” is proper. Id. at 1110-11.-10- ADEA Claim The district court fashioned a prima facie case mod el appropriate to this somewhat unusual ADEA discriminatory reassignment/r eduction-in-force context, requiring plaintiff to “(1) prove that he was withi n the protected age group; (2) prove that he was doing satisfactory work; (3) prove that adverse employment action was taken against him; and (4) produce evide nce from which a fact finder might reasonably conclude Sun intended to discrimin ate in reaching the decision to reassign Plaintiff’s former duties.” District Court Order at 20. See generally Jones v. Denver Post Corp. , 203 F.3d 748, 753 (Feb. 10, 2000) (prima facie ca se of discriminatory demotion where job from which pla intiff was demoted was not eliminated); Stone v. Autoliv ASP, Inc. , 2000 WL 368522 at *4 (10th Cir. April 11, 2000) (prima facie case for discriminatory disc harge in context of reduction in force). The district court held plaintiff made thi s prima facie showing, which Sun Oil does not dispute on appeal. The court went on to conclude, however, that Sun Oil had demonstrated legitimate, nondiscriminatory reasons for redistributing the duties constituting the locksmith position, justify ing plaintiff’s assignment to the Lube Service Center, and that plaintiff had failed to raise a genuine issue of fact as to whether this justification was pretextual. A ccordingly, the court entered summary judgment for Sun Oil on plaintiff’s ADEA claim. See Jones , 203 F.3d
at 753-54.-11-

The reasons articulated by Sun Oil for eliminating the locksmith job as a separate position were its ongoing effort to down size the workforce at the refinery, its belief that the various duties perfor med by the locksmith could be incorporated into the duties of other employees, an d its intent to switch, at least partially, the lock system used at the refinery. I ndeed, these reasons were not just articulated, but factually substantiated, by Sun Oi l in its summary judgment submission. Plaintiff bears the burden of demonstrating that th ese proffered reasons are pretextual. See id. at 753. We agree with the district court that the arguments he advances in this regard lack merit. We specificall y note and reject his contention that he was “replaced” by the younger individuals a mong whom his duties were distributed, so as to give rise to an inference of age discrimination. The locksmith position was eliminated based on the judgment that it was no longer necessary; plaintiff was not replaced in that posit ion: “[Plaintiff] disputes the fact that his position was eliminated because his . . . responsibilities were still performed after his [reassignment]. However, the t est for position elimination is not whether the responsibilities were still perform ed, but rather whether the responsibilities still constituted a single, distinct position.” Furr v. Seagate Technology, Inc. , 82 F.3d 980, 988 (10th Cir. 1996); see also Tinker v. Sears, Roebuck & Co. , 127 F.3d 519, 522 (6th Cir. 1997) (“a person is n ot replaced-12-

when another current employee assumes [his] duties . . ., or where [his] work is redistributed among employees already performing re lated tasks”). In sum, the record reflects an employer’s legitimat e business decision regarding the elimination of a position. Plaintiff’s criticisms of that decision do not render it unworthy of belief; at most they chal lenge the employer’s wisdom, which is beyond our purview here. See Furr , 82 F.3d at 986 (“The ADEA is not a vehicle for reviewing the propriety of business dec isions.”). Accordingly, we affirm the grant of summary judgment on plaintiff’s ADEA claim for substantially the reasons stated by the district court. See Jones , 203 F.3d at 754. The judgment of the district court is AFFIRMED. Ap pellee’s motion to strike portions of appellants’ appendix is denied.

Entered for the Court

Mary Beck Briscoe Circuit Judge