* This order and judgment is not binding precedent, e xcept under the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

** Honorable John W. Lungstrum, District Judge, UnitedStates District Court for the District of Kansas, sitting by designation.

UNITED STATES COURT OF APPEALS Filed 11/15/96 FOR THE TENTH CIRCUIT

SANDRA L. WRIGHT,

Plaintiff-Appellant,

v. CONTINENTAL AIRLINES CORPORATION, a Delaware corporation, Defendant-Appellee. No. 96-1015 (D.C. No. 94-N-1611) (D. Colo.)

ORDER AND JUDGMENT *
Before BALDOCK and BRISCOE, Circuit Judges, and LUN GSTRUM, ** District Judge.
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); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Plaintiff appeals from the district court’s grant o f defendant’s motion for judgment as a matter of law, pursuant to Fed. R. Ci v. P. 52(c). Plaintiff brought suit against her employer, Continental Airlines, al leging violations of the Americans With Disabilities Act (ADA), 42 U.S.C. §§ 12102-12213. After a bench trial, the district court granted judgment as a matter of law, finding that plaintiff had not established a prima facie case by failing to show that she was disabled within the meaning of the ADA. The distri ct court went on to find that, even if plaintiff had established her prima facie c ase, Continental’s failure to reassign plaintiff to fill a vacant position that s he claims would have accommodated her disability did not violate the ADA

. On appeal, plaintiff raises two issues. First, she argues that the district court erred in finding that the ADA did not require defendant to reassign plaintiff to a vacant position in preference to a more qualif ied candidate. Plaintiff also claims error in the district court’s refusal, in li ght of plaintiff’s failure to comply with the requirements of Fed. R. Civ. P. 26(a)(2), to allow her expert to testify. To be entitled to relief under the ADA, plaintiff m ust show that she is a disabled person within the meaning of that act. Wh ite v. York Int’l Corp. , 45 F.3d 357, 360 (10th Cir. 1995). The district courtfound that plaintiff made no such showing. On appeal, plaintiff does not claim error in the district court’s ruling on that prerequisite showing. Because the d istrict court found that plaintiff-3-

failed to show that she was disabled within the mea ning of the ADA and, therefore, that she was not qualified for relief un der the act, we do not address plaintiff’s argument that defendant violated the ac t when it hired another applicant to fill a vacant position. Plaintiff maintains that the district court erred i n its refusal to allow plaintiff’s expert testimony. The district court’s action was apparently in the form of a sanction pursuant to Fed. R. Civ. P. 37(c ), for plaintiff’s failure to comply with Fed. R. Civ. P. 26(a)(2). We review th e imposition of sanctions under Rule 37(c) for abuse of discretion. Orjias v . Stevenson , 31 F.3d 995, 1005 (10th Cir.), cert. denied , 115 S. Ct. 511 (1994). The district court was ve ry clear in its oral ruling that plaintiff had failed to comply with the straightforward requirements of Rule 26(a)(2). Further, the distri ct court found that, because of the proximity of the trial date, sufficient prejudi ce existed. We hold that the district court did not abuse its discretion in granting defendant’s motion to strike plaintiff’s expert witness.-4-

The judgment of the United States District Court fo r the District of Colorado is AFFIRMED.

Entered for the Court

John W. Lungstrum District Judge