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

### FEB 22 2001 

### PATRICK FISHER Clerk 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT J. STEELE, Plaintiff-Appellant,

v. THIOKOL CORPORATION, Defendant-Appellee, and BRUCE ESPLIN; AL SMART, Defendants. No. 99-4126

Appeal from the United States District Court

for the District of Utah (D.C. No. 2:96 CV 1038C)

David J. Holdsworth of Sandy, Utah, for Plaintiff-Appellant. Darryl J. Lee (Eric T. Johnson with him on the brie f) of Wood Crapo LLC, Salt Lake City, Utah, Defendant-Appellee.

Before SEYMOUR , KELLY and LUCERO , Circuit Judges.

SEYMOUR , Circuit Judge.1 Mr. Steele failed to comply with 10th Cir. R. 10.3( D)(2), which requires

inclusion in the record of a copy of the motion forsummary judgment made in the district court. He also failed to submit the brief s, memoranda, and points of authority in support of the aforementioned motion f or summary judgment, in violation of 10th Cir. R. 10.3(D)(2) and 10.3(E). Mr. Steele apparently would have this Court rely only on a transcript of the su mmary judgment motion hearing in deciding this appeal. Notwithstanding the omissions, we obtained the tria l motions and briefs from the district court. Appellants should be awar e, however, that we are not obligated to comb through the summary judgment reco rd and make a party’s case for it by locating materials not referenced by thatparty. Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 672 (10th Cir. 1998). -2- Robert Steele appeals from the district court’s gra nt of summary judgment to Thiokol Corporation and two individual defendant s on his claims under the Americans with Disabilities Act (ADA), 42 U.S.C. § 1210. We affirm.

I Robert Steele began his employment with Thiokol in 1987, working as a Rocket Test Technician in the main plant test area. 1 In 1988, after a year with the company, he was promoted and received a raise. In 1989, Mr. Steele was transferred from the main plant test area to the Hy drotest group. While working in Hydrotest, Mr. Steele was twice promoted on the basis of his performance. As the district court described the problem,-3-

“Steele had problems getting along with his co-work ers. Hydrotest group members often teased Steele about being stupi d. For example, team members would hum ‘If I Only Had a Brain,’ wri te ‘dunce’ on the back of Steele’s hard hat, and draw cartoons wi th Steele’s name on them depicting him as the ‘big dumb one.’ Steel e’s co-workers also made comments which Steele believed were direc ted at his mental health. Steele often heard co-workers referto him as ‘Psycho Bob.’ Steele overheard one team member say, ‘I hop e I’m not here or around when Bob loses it,’ and another say that he thought Steele was ‘crazy as hell. He’s a psychopath.’ One team member would make cuckoo noises in Steele’s presence. Steele al so took offense when his supervisor said, ‘Robert, what am I going to do with you and Jill?’ Jill Hopper was a Thiokol employee who many believed to have mental problems.” App. at 58. Mr. Steele often complained about his co-workers’ b ehavior to the foreman of the Hydrotest group, Linda Caldwell. He describ ed the above incidents to Ms. Caldwell on many occasions and asked her to interve ne. Ms. Caldwell cautioned Mr. Steele that were she to intervene in the situat ion, it might make matters worse for him because he would be perceived as “a mama’s boy” by the other workers in the group. She nevertheless spoke to the crew about the problem. Mr. Steele also informed his supervisor, Bill Clark, that he had a disability but did not request any accommodation or action by the company. Mr. Cl ark apparently responded to Mr. Steele by saying “Bullshit, you do not have a d isability.” Id. at 174.7. Mr. Steele subsequently requested that Mr. Clark transf er him out of the Hydrotest group and into the Postfire group because he “had h ad enough abuse.” Id. at 139- 140. Mr. Clark granted his request and Mr. Steele was transferred in August-4-

1993. While working in Postfire, Mr. Steele was diagnosedwith depression and he began to take Zoloft. In accordance with Thioko l policy, Mr. Steele informed the company nurse that he was taking Zoloft and she , in turn, informed Mr. Clark, Mr. Steele’s supervisor, about Mr. Steele’s medicat ion. In February 1994, Mr. Clark contacted the company nurse, stating he was “ concerned that Robert Steele is showing mood swings, wondered if the medication Zoloft would be the cause.” App. at 280. A doctor was consulted and the company nurse told Mr. Clark that “the mood swings and paranoia described are not sid e effects of Zoloft, perhaps other problems.” Id. In December 1994, Mr. Steele spoke with Dave Ruther ford, Thiokol’s human resources representative, and Greg Kotter, pl ant manager, concerning his treatment in the Postfire group and the harassment he was experiencing. Mr. Steele told them “that I’d had it. I had gone to v arious people. I’ve gone to . . . all these people trying to ask for help.” App. at 211. In response, Mr. Kotter prepared a memo which detailed the problems Mr. Ste ele was having and also what Mr. Steele was doing that was bothering his co -workers. While the memo noted that Mr. Steele was teased more than others o n his crew, the memo also stated that Mr. Steele’s co-workers believed Mr. St eele was “obsessed” with his planned litigation against Thiokol because he talke d about it continually. Mr.2 As the district court explained, “Thiokol refers to its graduated levels of

written discipline as ‘phases.’ Phases are a signi ficant part of the matrix Thiokol uses to select employees for termination during a r eduction in force.” App. at 60, n.1. -5- Steele “sometimes threatened to involve his co-work ers in the lawsuit and, on one or two occasions, threatened to fight co-workers inthe parking lot.” App. at 60. Mr. Kotter initiated training for everyone on Mr. S teele’s team, including Mr. Steele, about harassment and appropriate conduct in the workplace. He also requested that Mr. Steele refrain from discussing h is lawsuit against the company with co-workers during business hours. In January 1995, Mr. Steele was diagnosed with Obse ssive-Compulsive Disorder (OCD) by Suze Harrington, a counselor. As described by the district court, “[Mr.] Steele’s OCD is exhibited by mannerisms suchas walking in the same path and performing jobs in a certain way. Failure to follow these routines causes Steele anxiety and str ess and sometimes results in panic attacks. However, Steele’s OCD di d not interfere with his work except that it sometimes caused him t o spend more time performing a task.” Id. at 59. On January 12, Mr. Steele received “Phase I” 2 counseling from Mr. Clark for continuing to discuss his lawsuit with his cowo rkers despite Thiokol’s request that he not do so. On January 23, Mr. Steele recei ved “Phase II” counseling from Mr. Clark because Mr. Steele continued to discuss h is litigation with his-6-

coworkers. In April 1995, Mr. Steele got into a fight with his team leader, Mr. Anderson, during which Mr. Anderson slapped Mr. Ste ele. As a result, Mr. Anderson was demoted from his supervisory position, his pay was cut, and he was transferred to the Grit Blast group. Later in the month, Mr. Steele learned that he might also be transferred to the Grit Blast group. He was worried about working in that group because of Mr. Anderson, so he asked Mr. Kotter to transfer him to Tooling Refurbishment instead, a request which was granted. After beginning work in Tooling Refurbishment, Mr. Steele began experiencing problems with his co-workers similar t o those he had experienced before. “Steele’s former co-workers told his crew that Steele’s nickname was ‘Psycho Bob.’ After speaking with Steele’s former co-workers, a member of the Tooling Refurbishment crew asked Steele ‘how Harveythe Rabbit was doing.’ Someone also put a sign on Steele’s new supervisor’ s office reading, ‘Mental Health Services.’” Id. at 59. In December, Mr. Steele received a second P hase II counseling “as the result of two separate altercati ons with co-workers.” Id. at 61. In July 1996, after receiving a Phase III counselin g following another argument with a co-worker, Mr. Steele suffered a ne rvous breakdown and took a three-and-a-half-week leave of absence. A psychiat rist certified that Mr. Steele would be able to return to work on August 12, 1996, which Mr. Steele did.-7-

On September 12, Mr. Steele was terminated from his position “pursuant to a general reduction in force (‘RIF’).” App. at 61. The decision to terminate Steele was made by his supervisor in Tooling Refurb ishment, David Hess, in accordance with Thiokol’s RIF policies and procedur es. “After considering Steele’s work performance and contributions to the team together with his disciplinary history and ability to get along with co-workers, Hess found that Steele was rated lowest within his work group.” Id. Mr. Steele brought this action claiming that he had been subjected to a hostile work environment and then terminated in ret aliation for complaining about that work environment. The district court granted Thiokol’s motion for summary judgment on the hostile work environment, holding that Mr. Steele was not disabled under the ADA. The district court denied Thiokol’s summary judgment motion on the retaliation claim, finding “a genuine issue of material fact regarding Thiokol’s motivation for Steele’s discipl ine and subsequent termination which precludes summary judgment.” Id. at 68. Accordingly, the retaliation claim went to a jury, which found in favor of Thiok ol and against Mr. Steele. Mr. Steele appeals only the district court’s award of s ummary judgment to Thiokol on the hostile work environment claim.-8- II We review the district court’s grant of summary jud gment de novo, applying the same legal standard. Summary judgmentis appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the re is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56 (c). When applying this sta ndard, we view the evidence and draw reasonable inferences therefrom in the lig ht most favorable to the nonmoving party. Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs. , 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 120 S.Ct. 53 (1999). Mr. Steele contends the district court erred in hol ding that a plaintiff bringing a hostile work environment claim under the Americans with Disabilities Act must be disabled and not merely “impaired.” Al ternatively, he argues the district court erred in concluding he was not disab led by his ObsessiveCompulsive Disorder (OCD) for purposes of the Act. We examine each of these issues in turn.-9- III No federal appellate court has yet directly ruled o n whether a hostile work environment claim can even be brought under the ADA . Some circuits have assumed, without deciding, that such an ADA claim i s cognizable. See Walton v. Mental Health Ass’n of S.E. Pa. , 168 F.3d 661, 666-67 (3rd Cir. 1999); McConathy v. Dr. Pepper/Seven Up Corp. , 131 F.3d 558, 563 (5th Cir. 1998); Vollmert v. Wis. Dep’t of Transp. , 197 F.3d 293, 297 (7th Cir. 1999); Silk v. City of Chicago , 194 F.3d 788, 803-04 (7th Cir. 1999); Wallin v. Minn. Dep’t of Corr. , 153 F.3d 681, 687-88 (8th Cir. 1998), cert. denied, 526 U.S. 1004 (1999). For the reasons set out below, we need not decide whether ahostile work environment claim is viable under the ADA.

A. Must Mr. Steele be disabled and not simply “impaired” to avail himself of the ADA? In order to make out a claim under the Americans wi th Disabilities Act, a plaintiff must demonstrate as a threshold matter th at he is a “qualified individual with a disability.” 42 U.S.C. §12112(a). AlthoughMr. Steele conceded below that a person must be disabled to bring a hostile w ork environment claim under the ADA, he argues on appeal that an “impairment” w hich falls short of the statutory definition of “disability” is enough. Mr . Steele contends that an “impairment” should be sufficient to satisfy the AD A’s threshold test in cases-10-

where the underlying substantive claim is, as here, based on a hostile work environment theory. Tenth Circuit precedent in this area runs directly counter to Mr. Steele’s argument, holding that in order to bring any claim under the ADA, a plaintiff must first establish that he is a qualified individ ual with a disability. See Pack v. Kmart Corp. , 166 F.3d 1300, 1304 (10th Cir.), cert denied, 528 U.S. 811 (1999). Mr. Steele cites no case in support of his position , and we have found none. See, e.g., Walton , 168 F.3d at 667 (assuming that a hostile work env ironment claim is cognizable under the ADA, one element of a prima fa cie case would be the “qualified individual with a disability” standard o f the ADA). We decline to extend the reach of the ADA so far beyond its plain language, deferring instead, as we must, to the definition of disability provide d in the ADA and its implementing regulations.

B. Is Mr. Steele disabled? Mr. Steele alternatively asserts he is disabled wit hin the meaning of the ADA. Disability is defined by the Act as follows: (A) a physical or mental impairment that substantia lly limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. 42 U.S.C. §12102(2). Mr. Steele argues on appeal that he is disabled under each3 Mr. Steele does not argue that his ability to work, which is considered a

major life activity under the ADA, was substantiall y limited by his OCD. In fact, the record reflects that Thiokol accommodated his O CD-related problems by permitting him to make up any time he lost as a res ult of taking more time to perform certain tasks or arriving to work later whe n he had trouble sleeping through the night. -11- of these three definitions of disability. Because he did not contend in the district court that he had a record of impairment, however, we will not address that issue here. See, e.g., Tele-Communications, Inc. v. Commissione r , 12 F.3d 1005, 1007 (10th Cir. 1993) (“The general rule is that an appe llate court will not consider an issue raised for the first time on appeal.”). Mr. Steele claims he has “a physical or mental impa irment that substantially limits one or more” of his major life activities, a n argument which the district court rejected. Although one federal circuit courthas found that an individual with OCD was disabled, the ADA demands that we exam ine exactly how Mr. Steele’s major life activities are limited by his i mpairment of OCD. See, e.g.,
Amir v. St. Louis Univ. , 184 F.3d 1017, 1027 (8th Cir. 1999)(holding plaintiff disabled because his OCD substantially affected his ability “to eat and drink without vomiting [and] his ability to concentrate a nd learn”). The major life activities Mr. Steele identifies on appeal as being substantially affected by his OCD are sleeping, wal king, interacting with others, and learning/comprehending. 3 The EEOC regulations governing the ADA identify-12-

walking and learning as examples of major life acti vities. See 29 CFR §1630.2(i). In addition, we have accepted sleeping as a major l ife activity, see Pack, 166 F.3d at 1305. We have not decided whether “interacting with others” is a major life activity and there is a split among the circuits on the issue. Compare Soileau v. Guilford of Maine, Inc. , 105 F.3d 12, 15 (1st Cir. 1997) with McAlindin v. County of San Diego , 192 F.3d 1226, 1234-1235 (9th Cir. 1999), cert. denied, 120 S.Ct. 2689 (2000). We address each asserted major life a ctivity in turn, with the exception of Mr. Steele’s ability to comprehend and learn, which he did not raise in the district court. See Tele-Communications, Inc. , 12 F.3d at 1007. A person is “substantially limited” in a major lif e activity if he is: (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 under which the average person in the general population can perform that same major life activity. 29 CFR §1630.2(j)(1). In determining whether any o f Mr. Steele’s major life activities have been affected, the ADA regulations counsel that a court should also consider the following factors: (i) The nature and severity of the impairment; (ii) The duration or expected duration of the impai rment; and (iii) The permanent or long term impact, or the exp ected permanent or long term impact of or resulting from the impairment. 29 CFR §1630.2 (j)(2). We apply these factors to t he evidence Mr. Steele-13-

submitted to avoid summary judgment. 1. Sleeping
In Pack, we held that sleeping is a major life activity for ADA purposes. Pack, 166 F.3d at 1305. However, we concluded that the p laintiff’s disability did not “substantially limit” her sleeping. Applying t he regulations discussed above, we held that “[w]hile the evidence showed Pack had episodes of sleep disruption and/or waking without feeling rested . . . there is no indication that her sleep problems were severe, long term, or had a permanentimpact.” Id. at 1306. In an affidavit offered in support of his response to Thiokol’s summary judgment motion, Mr. Steele asserted that he is oft en awake for some time in the middle of the night, “which causes me a great deal of fatigue during the day.” App. at 274. He offered no evidence that his sleep problems made it difficult for him to go to work and do his job well or affected h is overall health in a severe or permanent manner. This is virtually identical to t he situation presented in Pack

. Consequently, the district court correctly conclude d there was insufficient evidence that Mr. Steele’s major life activity of s leeping was sufficiently limiting to survive summary judgment. 2. Walking There is no doubt that Mr. Steele’s patterns of wal king are affected by his OCD in sometimes inconvenient ways, as the districtcourt recognized. To some-14-

extent his OCD inhibits his walking, but we agree w ith the district court that it cannot fairly be said to substantially limit his ab ility to walk because he is still physically and psychologically capable of walking. This is not to say that walking may only be limited physically, such as bei ng confined to a wheelchair. A case could be presented where an emotional or men tal disorder so affected a person’s ability to walk that his walking was subst antially limited, by agoraphobia for example. That is not the case here. Mr. Steel e failed to present sufficient evidence that his ability to walk was substantiallylimited as required by the ADA. 3. Interacting with others This court has never decided whether “interacting w ith others” is a major life activity under the ADA. As we have noted, the re is a split among the circuit courts on this question. The First Circuit has suggested “the ability to getalong with others” does not qualify as a major life activity. Soileau , 105 F.3d at 15-16. The court held that “the concept of [ability to interact with othe rs] is remarkably elastic, perhaps so much so as to make it unworkable as a definition .” Id. at 15. Mr. Soileau had dysthymia, “a chronic depressive disorder character ized by intermittent bouts of depression.” Id. at 14. He claimed this disorder made it hard for him to be in crowded places, such as pubs and stores. The courtsaid “there is nothing extraordinary about preferring uncrowded places. S oileau performed his normal-15-

daily chores, went grocery shopping, and visited pu bs.” Id. at 16. The simple fact that Soileau left such places when they became too crowded did not demonstrate that “the nature and severity of his impairment were substantial.” Id. In contrast, the Ninth Circuit has held that “becau se interacting with others is an essential, regular function, like walking and breathing, it easily falls within the definition of ‘major life activity.’” McAlindin , 192 F.3d at 1234. The McAlindin court specifically rejected the First Circuit’s app roach to the issue in Soileau , noting that “interacting with others is no more v ague than ‘caring for oneself,’ which has been widely recognized as a maj or life activity.” Id. at 1235. Mr. McAlindin suffered from anxiety, panic and somatoform disorders. Id. at 1230. His symptoms included “dizziness, lightheade dness, narrowed vision, and strange sensations” in his head, arms and legs, imp otence, and severe insomnia and severe anxiety -- even when he was on a regimenof powerful medications. Id. at 1230-1231. His ability to see, hear, and speak was affected by his disorders. Id. at 1231. In determining whether Mr. McAlindin’s ability to interact with others was affected by his disorder, the court pointed out that “there are clinical findings indicating that one of the ef fects of McAlindin’s mental illness is a pattern of withdrawal from public plac es and family members.” Id. at 1235. Comparing the facts of this case to the facts in bo th Soileau and McAlindin ,-16-

it is apparent that Mr. Steele’s experiences are mo re akin to those of Mr. Soileau than to those of Mr. McAlindin. Mr. Steele alleges that he had “severe interpersonal problems” with “many of his coworkers ,” and that his “OCD and depression included behaviors that made him the fre quent butt of nasty comments and jokes.” Aplt. Br. at 36. As the Ninth Circuitspecifically noted in McAlindin , however, “[m]ere trouble getting along with coworke rs is not sufficient to show a substantial limitation.” McAlindin , 192 F.3d at 1235. Unlike Mr. McAlindin, Mr. Steele has not provided any evidence that his OCD h as caused him to have trouble getting along with people in general. Instead, Mr. Steele’s difficulties seem to have been limited to the people he worked with. Li ke the plaintiff in Soileau , “the evidence does not establish that [he] had part icular difficulty in interacting with others, except for [certain co-workers].” Soileau , 105 F.3d at 15. We need not decide today whether this circuit will recognize interacting with others as a major life activity under the ADA, because Mr. Steele has not met the burden that would be required of plaintiffs if we were to so hold. The McAlindin court held that in order to demonstrate a plaintif f’s major life activity of interacting with others was substantially affect ed, “a plaintiff must show that his ‘relations with others were characterized on a regular basis by severe problems, for example, consistently high levels of hostility, social withdrawal, or failure to communicate when necessary.” McAlindin , 192 F.3d at 1235 (quoting4 We reiterate what this Court has noted before, that“[w]hile the EEOC's

guidance may be entitled to some consideration in o ur analysis, it does not carry the force of law and is not entitled to any special deference.” Pack, 166 F.3d at 1305 n.5; Sutton v. United Air Lines , 130 F.3d 893, 899 n.3 (10th Cir. 1997). -17- EEOC Enforcement Guidance on the Americans with Dis abilities Act and Psychiatric Disabilities (March 25, 1997) at 5). 4 On the record before us, Mr. Steele has not made out a case that would satisfy t his test.

C. Was Mr. Steele regarded as disabled? The ADA recognizes that some persons who are not di sabled will nonetheless have claims under the ADA if they can e stablish they were “regarded as” disabled. The EEOC regulations give guidance o n what courts should consider in making this determination. The regulat ions provide three scenarios under which a plaintiff can be deemed disabled: (1) Has a physical or mental impairment that does n ot substantially limit major life activities but is treated by a covered e ntity as constituting such limitation; (2) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of oth ers toward such impairment; or (3) Has none of the impairments defined in . . . of this section but is treated by a covered entity as having a substantially limit ing impairment. 29 CFR § 1630.2(l). Cases in this area often involve situations where aperson is considered by an employer to be disabled and limited in the activ ities or jobs that person may-18-

perform. We have held that “in order to establish a disability under the ‘regarded as’ prong of the ADA with respect to the major life activity of working, an individual must show that the employer regarded himor her as being substantially limited in performing either a class of jobs or a b road range of jobs in various classes.” Sutton v. United Air Lines, Inc. , 130 F.3d 893, 904 (10th Cir. 1997), aff’d, 527 U.S. 471 (1999). The district court applied these standards to Mr. Steele’s claims and held “the undisputed facts showthat Steele performed all of his work assignments satisfactorily, received at le ast three promotions, and was never precluded from performing duties expected of co-workers.” App. at 65-66. Mr. Steele does not argue on appeal that his major life activity of working was affected. Rather, he appears to contend that b ecause he was “regarded as” disabled by Thiokol and its employees, his major li fe activities of sleeping, walking, and getting along with others were substantially limited. In order to prevail under this section, Mr. Steele must establi sh that those major life activities were affected in one of the three ways p rovided for in the EEOC regulations cited above. To meet this burden, he r elies solely on the fact that Thiokol was aware of his disability and the medicat ions he was taking, and that one of his supervisors evinced concern about his mo od swings and asked the company nurse if these mood swings could be a side effect of Mr. Steele’s medication. This falls far short of raising a tria ble issue that Mr. Steele was-19-

regarded by his employer as being substantially lim ited in his ability to sleep, walk, or interact with others as a result. See Cody v. Cigna Healthcare of St. Louis, Inc. , 139 F.3d 595, 599 (8th Cir. 1998); 29 CFR § 1630. 2(1)(1), (3) (“an employer’s request for a mental evaluation . . . is not equivalent to treatment of the employee as though she were substantially impai red.”)
We AFFIRM the judgment of the district court holding that Mr . Steele did not establish a sufficient case under the ADA to su rvive summary judgment.