* This order and judgment is not binding precedent, e xcept under the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 4 1999 

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

DONALD McVARISH,

Plaintiff-Appellant,

v. NEW HORIZONS COMMUNITY COUNSELING AND MENTAL HEALTH SERVICES INC., a corporation,

Defendant-Appellee. No. 98-6284 (D.C. No. 96-CV-844) (W.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA , BARRETT , and MURPHY , 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-2-

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Plaintiff-appellant Donald McVarish appeals from su mmary judgment granted in favor of defendant-appellee New Horizons Community Counseling and Mental Health Services, Inc. on his claims brought pursuant to Title I of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 -17 (“ADA”), and from a later summary judgment granted in favor of defendant on his claims brought under the Family Medical Leave Act, 29 U.S.C. §§ 26 01-54 (“FMLA”). Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm. We review both grants of summary judgment de novo , applying the same standard employed by the district court under Rule 56(c) of the Federal Rules of Civil Procedure. See Riley v. Brown & Root, Inc. , 896 F.2d 474, 476 (10th Cir. 1990). “We must consider factual inferences tendin g to show triable issues in the light most favorable to the existence of those issues.” Id.

I. The ADA claims To state a prima facie case under the ADA, plaintif f must exhibit that (1) he suffers from a “disability” as defined by th e statute; (2) he is a “qualified individual,” i.e., that he is able to perform the e ssential functions of the job, with or without reasonable accommodation; and (3) he suf fered an adverse employment-3-

action because of the disability. See Morgan v. Hilti, Inc. , 108 F.3d 1319, 1323 (10th Cir. 1997). The ADA defines “disability” as (A) a physical or mental impairment that substantia lly limits one or more of the major life activities of such individua l; [or]

. . . . (C) being regarded as having such an impairment. 42 U.S.C. § 12102(2). “Major life activities” is d efined as “functions such as . . . working.” 29 C.F.R. § 1630.2(i). With respect to working, [t]he term “substantially limits” means significant ly restricted in the ability to perform either a class of jobs or a broa d range of jobs in various classes as compared to the average person h aving comparable training, skills and abilities. The inability to p erform a single, particular job does not constitute a substantial li mitation in the major life activity of working. 29 C.F.R. § 1630.2(j)(3)(i). The key question presented on appeal is whether in October 1994 plaintiff was “disabled” such that he was protected by the AD A. In his deposition, plaintiff stated that his disabilities were a “chro nic heart condition,” strokes that occurred in February 1995 and January 1996, and a p erception by his supervisor that he had a mental impairment in June 1995. Appe llant’s App., McVarish Dep. at 7. It is undisputed that plaintiff suffered a h eart attack in 1984 but returned to work and worked without any significant problem unt il July of 1994, when one of his coworkers, Mahala Ellington, was made his supervisor. He demanded her-4-

removal as his supervisor in October of 1994 as a “ reasonable accommodation” under the ADA, stating that he suffered stress unde r her supervision. He claims that denial of this “accommodation” was an adverse employment action in violation of the ADA. Plaintiff’s brief lists othe r adverse employment actions as (1) a threatened termination for plaintiff’s absenc e from a scheduled meeting in October 1994; (2) Ms. Ellington’s alleged character ization of him as mentally ill in June 1995; (3) a negative evaluation; and (4) bypassing him in 1995 in decisions that had been part of plaintiff’s job description. See Appellant’s Br.
at 12-13. Plaintiff testified that, at the time he demanded M s. Ellington’s removal as his supervisor, “[g]oing to work [was] not a proble m. Going to work and contacting Mahala on a daily basis and talking withher about her perceptions of my job and that kind of thing made it difficult forme.” Appellant’s App., McVarish Dep. at 47. He testified that defendant d id not take any adverse action against him because of his physical impairments exc ept for failing to remove Ms. Ellington as his supervisor. See id. at 81-82. It is undisputed that in October 1994 defendant suggested that plaintiff take twelve paid weeks off to attend a stress management program that defendant would pay for under its EAP program. Plaintiff refused this suggestion. Ms. Ellington w as replaced by another person as-5-

plaintiff’s supervisor in October 1995, and plainti ff was placed on permanent disability in 1996 after his second stroke. Plaintiff’s claim that defendant perceived that he had a mental impairment such that he was a “qualified individual with a dis ability”as defined by the ADA is based upon the fact that in June 1995 Ms. Elling ton asked a psychiatrist who worked at New Horizons for advice on how to negotiate with plaintiff and asked whether the psychiatrist thought that plaintiff, wh o was very angry, presented a danger to himself or to others at that time. See Appellant’s Br. at 8-9 & Ex. 2-4. We have carefully reviewed the record presented to the district court. For the reasons stated in the court’s memorandum opinio n, we agree that, as a matter of law, plaintiff has failed to demonstrate that inOctober 1994 he was a “disabled” individual within the meaning of the ADA. See Mem. Op. filed Oct. 29, 1997 at 5-8; cf. Siemon v. AT&T Corp. , 117 F.3d 1173, 1176 (10th Cir. 1997) (holding that plaintiff suffering from mental impairment preventing him from working under a few supervisors was not disabl ed under the ADA). He also failed to demonstrate that defendant regarded him a s having a mental impairment that substantially limited his ability to work. As the district court noted, Plaintiff has presented no evidence that Defendant changed Plaintiff’s job duties or took any other adverse employment action based on a perception that he suffered a mental dis ability.-6-

Mem. Op. filed Oct. 29, 1997, at 8. Because plaint iff failed as a matter of law to establish that in 1994 he was an individual with a disability as defined under the statute, summary judgment was properly granted. See Siemon , 117 F.3d at 1175 (stating that if plaintiff suffers no “disability” as defined by the statute, employer’s behavior is not actionable under the ADA ).

II. The FMLA claims The memorandum opinion issued by the district cou rt on June 5, 1998, fully sets out plaintiff’s assertions and presents a thorough analysis and application of the relevant law. This court has re viewed the record, and, for the reasons stated in the district court’s memorandum o pinion, is convinced that the court properly granted summary judgment to defendant on plaintiff’s FMLA claims. The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED

.

Entered for the Court

Deanell Reece Tacha Circuit Judge