*The HONORABLE JOHN R. TUNHEIM, United States District Judge for the

District of Minnesota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 99-1335 

__________

Raymond Shipley, *

*

Plaintiff - Appellant, *

*

v. *

*

City of University City; University *

City Fire Department, *

*

Defendants - Appellees. *

Appeal from the United States

District Court for the Eastern District

of Missouri.

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Submitted: September 17, 1999

Filed: November 19, 1999

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Before McMILLIAN and MURPHY, Circuit Judges, and TUNHEIM,* District

Judge.

__________

MURPHY, Circuit Judge.

After the City of University City, Missouri declined to reinstate him as a

firefighter, Raymond Shipley sued the city under Title I of the Americans with

Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. (1994) and Section 504 of the
 

2The Honorable Jean C. Hamilton, Chief Judge, United States District Court

for the Eastern District of Missouri.

 

3There are also two motions pending. Shortly before oral argument Shipley

moved to dismiss his claim under 42 U.S.C. § 1983 which alleged that he had not

received the process he was due. The City has moved to strike portions of Shipley's

separate appendix because they were not part of the record before the district court;

Shipley has offered no response. We grant both motions.

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Rehabilitation Act, 29 U.S.C. § 794 (1994), seeking monetary and injunctive relief,

including reinstatement. The district court2 granted summary judgment for

University City, and Shipley appeals.3

Shipley began work as a firefighter for University City in 1974. Two years

later he was severely injured on the job and retired with a disability pension. After

several years of physical therapy, he successfully applied to the Police and

Firemen's Retirement Board for reinstatement as a firefighter. Shipley retired once

more in 1990 after he was injured in a fall from a truck, and was employed at

various times as a car wash attendant, a salesman, a dry cleaner, and a dish washer

repairman. In 1994 he again applied for reinstatement and supplied the board with

supporting letters from several doctors. The board voted unanimously to deny his

request to return to duty as a firefighter. The minutes of its meeting indicate that it

denied the request in order "to safeguard Mr. Shipley, the citizens, and his fellow

firefighters." 

In his complaint Shipley alleged that University City violated the ADA and

the Rehabilitation Act by refusing to reinstate him because it regarded him as being

disabled. The district court later concluded that Shipley had not created a material

issue of fact on the question of whether he was regarded as substantially limited in

one or more major life functions within the meaning of either statute and granted

summary judgment to the City.
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On appeal Shipley argues that there are material issues of fact concerning his

allegation that he was not reinstated because the city regarded him as having an

impairment which interfered with major life activities. Shipley also suggests for the

first time on appeal that the city did not reinstate him due to his having a record of

an impairment which interfered with major life activities. University City responds

that because he is precluded only from working as a firefighter, as a matter of law

Shipley's impairment does not substantially limit a major life function. The city also

argues that Shipley has waived his new claim of a record of impairment by failing to

raise it below. Our review is de novo. Aucutt v. Six Flags Over Mid-America, 85

F.3d 1311, 1315 (8th Cir. 1996). 

Title I of the ADA bars employers from discriminating against "a qualified

individual with a disability because of the disability of such individual in regard to . .

. hiring, advancement, or discharge." 42 U.S.C. § 12112(a). A qualified individual

is a person who "with or without reasonable accommodation can perform the

essential functions" of the job in question. 42 U.S.C. § 1211(8). Disability is

defined as:

(A) a physical or mental impairment that substantially

limits one or more of the major life activities of such

individual;

(B) a record of such impairment;

(C) being regarded as having such an impairment.

42 U.S.C. § 12102(2). Although major life activity is not defined by the ADA, the

Supreme Court has interpreted the term to include functions such as caring for one's

self, performing manual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working. Bragdon v. Abbott, 524 U.S. 624, 638-639 (1998). The

same basic standards and definitions are used under both the ADA and the

Rehabilitation Act so cases interpreting either may be relevant to the other. Allison
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v. Department of Corrections, 94 F.3d 494, 497 (8th Cir. 1996). To recover under

either statute, Shipley must demonstrate that the City refused to reinstate him as a

firefighter because it regarded him as substantially limited in one or more major life

activities.

The Supreme Court clarified what constitutes a substantial limitation of a

major life activity in two cases decided last June. In Sutton v. United Air Lines, ---

U.S. ---, 119 S.Ct. 2139 (1999), the Court held that when the major life activity

under consideration is that of working, a substantial limitation requires that plaintiffs

be "unable to work in a broad class of jobs." Id. at 2151. The Sutton plaintiffs had

complained that they were not hired as commercial airline pilots because the airline

regarded their myopia as substantially limiting them in the major life activity of

working. This theory did not state a claim under the ADA since an employer may

lawfully exclude an employee with limited physical capacities from a particular job. 

"By its terms, the ADA allows employers to prefer some physical attributes over

others and to establish physical criteria" even if those criteria would substantially

limit a person's employment opportunities if they were adopted by a large number of

employers. Id. at 2150-52. It is not enough for a plaintiff to demonstrate that he is

regarded as unable to perform a particular job or type of job. Id. at 2151. To be

regarded as substantially limited in the major life activity of working, one must be

regarded as precluded from a substantial class of jobs. Id. In the companion case, 

Murphy v. United Parcel Serv., --- U.S. ---, 119 S.Ct. 2133 (1999), a mechanic who

had been diagnosed with high blood pressure lost his Department of Transportation

certification and was dismissed from his job. He sued, claiming that his employer

regarded him as disabled within the meaning of the ADA. His employer was

entitled to summary judgment because Murphy put forward no evidence

demonstrating that he was regarded as unable to perform a class of jobs. Id. at

2139.

Murphy and Sutton demonstrate that an ADA plaintiff must do more than
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allege that he is regarded as having an impairment which prevents him from working

at a particular job. A plaintiff must demonstrate that he is regarded as precluded

from a broad class of jobs. The record in this case indicates that Shipley was able

to perform a variety of jobs, and University City is entitled to summary judgment

because it regarded him only as unable to perform the job of firefighter.

A claim nearly identical to Shipley's was rejected several years ago in Smith

v. City of Des Moines, Iowa, 99 F.3d 1466 (8th Cir. 1996). The plaintiff in Smith

was a firefighter whose department had dismissed him because he could not pass the

pulmonary function testing it required of all firefighters. Smith alleged that his

employer terminated him because it regarded him as having a substantially limiting

impairment within the meaning of the ADA. Smith alleged only that he was

regarded as having an impairment which disqualified him from a narrow range of

jobs, and thus as a matter of law he was not "substantially limited". Id. at 1474.

Because Smith did not produce evidence that he was regarded as unable to perform

other jobs besides that of firefighter, his ADA claim failed. Shipley's claim fails for

the same reason.

Shipley has attempted to recast his claim on appeal to distinguish it from

these precedents. Shipley cites the effect his injuries have had on his "walking,

lifting, and excreting," complaining that the district court improperly disregarded the

ways in which these major life activities have been impaired. It is not at all clear

that he ever directed this theory to the attention of the district court. Moreover,

Shipley has not produced evidence that he was terminated for any reason other than

the retirement board's concerns about his capacity to perform as a firefighter. The

record indicates only that he was not reinstated because University City believed he

was unable to meet the requirements of that position. Shipley has not made out a

claim under either the ADA or the Rehabilitation Act.

For these reasons, the judgment of the district court is affirmed.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.