* This order and judgment is not binding precedent, e xcept under the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

1 After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. 

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

### JAN 13 1999 

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

KENNETH R. JOHNSON,

Plaintiff-Appellant,

v. THE CITY OF MIDWEST CITY,

Defendant-Appellee. No. 98-6088 (D.C. No. CIV-97-219-T) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY , BRISCOE , and LUCERO , Circuit Judges.

Plaintiff filed this action against his former empl oyer, Midwest City, alleging violations of the Americans with Disabilit ies Act (ADA), 42 U.S.C. §§
12101-12213. 1 (Plaintiff’s complaint also included allegations of violation of Oklahoma public policy, but he does not pursue this claim on appeal.) The-2-

district court granted summary judgment in favor of the City and we review that grant de novo. See Lowe v. Angelo’s Italian Foods, Inc. , 87 F.3d 1170, 1173 (10th Cir. 1996). In doing so, we apply the same l egal standard used by the district court: we affirm if there is no genuine i ssue as to any material fact and the City is entitled to judgment as a matter of law. See id. Guided by this standard, we affirm. Plaintiff was employed by the City as a laborer in 1986, and was promoted to crew chief in 1992. In June 1993, plaintiff was involved in an automobile accident while on the job. As a result of injuries he received in the accident, plaintiff underwent surgery for a torn rotator cuff and joint derangement. After the surgery, plaintiff was totally disabled between October 1993, and midDecember 1993. Plaintiff’s physician then releasedhim to return to work with varying restrictions on lifting. Following at leas t one additional surgery and a final follow-up visit with his physician regarding the rotator cuff repair in August 1996, plaintiff was discharged from care as to thatinjury with a permanent restriction proscribing all overhead lifting with t he right shoulder. The City offered plaintiff another position in the sanitatio n division conditioned on his submission of a medical release from his doctor stating that he could meet the physical demands of that position. Plaintiff neith er submitted the release nor applied for any other positions with the City. The reafter, the City terminated-3-

plaintiff’s employment as a laborer because he coul d no longer perform the physical demands of the job. The City again emphas ized that plaintiff could apply for any position for which he was qualified. Like the trial court, we look to 42 U.S.C. § 12112( a), and the precedents interpreting the statute. To maintain a claim for wrongful discharge under th e ADA, a plaintiff must demonstrate (1) that [he] is a disab led person within the meaning of the ADA; (2) that [he] is able to pe rform the essential functions of the job with or without reasonable acc ommodation; and (3) that the employer terminated [him] because of [ his] disability.
Lowe , 87 F.3d at 1173. The district court found that p laintiff was not a disabled person within the meaning of the ADA, and granted s ummary judgment on that basis. We may affirm the grant of summary judgmenton any basis “for which there is a record sufficient to permit conclusions of law.” United States v. Sandoval , 29 F.3d 537, 542 n.6 (10th Cir. 1994). Reviewing the record, we conclude that because the plaintiff is unable to pe rform the essential functions of the job either with or without reasonable accommodation plaintiff has not shown that he is a “qualified individual” under the ADA. We affirm the grant of summary judgment in favor of defendants on that bas is. Determination of whether plaintiff is a “qualified individual” under the ADA requires a two-part inquiry. The first step is to determine whether plaintiff could perform the essential functions of the job. See Aldrich v. Boeing Co. , 146-4-

F.3d 1265, 1271 (10th Cir. 1998), petition for cert. filed (U.S. Nov. 23, 1998) (No. 98-859). If he cannot, we must then “determin e whether any reasonable accommodation by the [City] would enable him to perform those functions.” Id. Because the plaintiff bears the ultimate burden of proving he is a “qualified individual” under the ADA, see White v. York Int’l Corp. , 45 F.3d 357, 361 (10th Cir. 1995), he must produce sufficient evidence to make a prima facie showing that accommodation is possible, and then the burdenshifts to the City “to present evidence of its inability to accommodate.” Id. Plaintiff is then obligated to rebut the City’s evidence. See id. The City produced evidence that lifting overhead is an essential function of plaintiff’s former job as laborer in its utilities department and established that the job description for such position requires overheadlifting. Appellant’s App. at 44. Additionally, both the city manager and the he ad of the department testified overhead lifting was essential to the job. See id. at 123; 229-30; 232-33; 235; 236-37. The plaintiff failed to counter the City’s evidence on point, thus “[a]lthough ordinarily a fact question to be decide d on a case-by-case basis, plaintiff[] ha[s] presented no evidence to rebut th e conclusion that [overhead lifting] is essential to the [laborer] job” and his claim fails. Milton v. Scrivner,
Inc. , 53 F.3d 1118, 1124 (10th Cir. 1995). That being the situation, we consider-5-

whether plaintiff has demonstrated a genuine issue of fact regarding his ability to perform the essential functions with reasonable accommodation. See id. Plaintiff suggested that reapportioning the overhea d lifting responsibilities to the other two crew members was a reasonable acco mmodation. To the contrary, the City is not required by the ADA to reallocate job duties in order to change the essential function of a job. See C.F.R. Pt. 1630 App. §1630.2(o). An accommodation that would result in other employe es having to work harder or longer hours is not required. See 29 C.F.R. §1630.2(p)(2)(v)(impact to other employees on theirability to do their duties is a relevant factor in determining th e reasonableness of an accommodation). Id. at 1124-25 (further citation omitted). Further, t he record shows the City attempted to accommodate plaintiff by finding anoth er position for which he was qualified. The City was prepared to place plaintif f in a sanitation department position if he provided a release from his physicia n. Plaintiff did not provide the documentation, and has not met his burden to show h e is a “qualified individual” entitled to protection of the ADA.
AFFIRMED.
ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge