The Honorable Paul A. Magnuson, Chief Judge, United States Distr ict Court for 1 the District of Minnesota, sitting by designation.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 98-1189

_____________ Gavin Gutridge, * * Appellant, * * v. * * Appeal from the United States Wayne Clure, as president of * District Court for the Computerland, Individually; Midland * District of Nebraska. Computer, Inc., doing business as * Computerland of Nebraska, also * known as Computerland, * * Appellees. *

_____________ Submitted: June 12, 1998 Filed: August 26, 1998

_____________ Before BOWMAN, Chief Judge, LOKEN, Circ uit Judge, and MAGNUSON, District 1 Judge.

_____________ BOWMAN, Chief Judge. Gavin Gutridge sued Midl and Computer, Inc., doing business as Computerland of Nebraska, and its president, Wayne Clure (hereinafter collectively referred to asThe Honorable Joseph F. Bataillon, United State s District Judge for the District 2 of Nebraska. -2- "Computerland"), for discrimination under the America ns with Disabilities Act (ADA), 42 U.S.C. §§ 12101 to 12213 (1994). Both parties moved for summaryjudgment. The Distri ctCourt granted Computerland's motion, denied Gutridge's motion, an d 2 dis missedthe suit with prejudice. Gutridge appeals, claiming that the District Cour t erred in finding that he was not disabled under the ADA.

I. Computerland

sells computers and related products to businesses and provides maintenance for those computer products almost exclusively at the customer's place of business, or on-site. Computerland h ired Gutridge as a computer service technician in October 19 90. Gutridge's duties included the installation, repair, and service o f comp uter equipment sold to Computerland's customers. In performing these duties , Gutridg e was required to lift computer equipment both at the store and on-site , transport computer equipment between the customer site and Comp uterland's shop, and move on-site objects such as desks, shelves, and chairs.

In March 1993, Gutridge was lifting a computer monitor when his left wris t snapped, causing pain and numbness in his wrist, ha nd, and fingers. Gutridge received medical treatment and was eventually diagnosed with carpel tunnel syndrome an d cubital tunnel syndrome in both his left and right wrists. Thereafter, through June 1995, Gutri dge underwent five separate surgeries on his left and right wrists and elbows

. After each surgery, Gutridge was placed by his doctors on various lifting restrictions and r eturned to work. During this time, Computerland assigned Gutridge to a tem porary position requiring only light duty, in-shop services. On June 19, 1995 , Gu tridge's treating physician issued a written release to return to work with th e permanent restriction that he may lift f orty-five pounds 5% of the work day, thirty-five-3-

pounds 3 3% of the work day, twenty pounds 20% of the work day, and ten pound s cons istently. A few days later, Computerland terminated Gutridge's employment. In its letter of termination to Gutridge, Computerland stated:

We have been informed that your rehabilitation program has ended an d that th e medical restrictions as identified by Dr. David Clough are no w rated as permanent. That condition unfortunately prevents yo u from being able to fully accomplish the tasks necessary to perform your job functions.

J.A. at 24. Threeand one-half weeks later, Gutridge was hired as a computer service technician by a company that repaired computers both in-shop and on-site.

II.

We rev iew de novo a district court's grant of summary judgment. See Wooten v. Farmland Foods , 58 F.3d 382, 385 (8th Cir. 1995). We affir m the judgment if "there is n o genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The ADA prohibits employers from discriminating "against a quali fied individual witha disability because of the disability of such individual." 42 U.S.C. § 12112(a). To establ ish a claim under the ADA, a plaintiff must show "that he has a disability as defined in 42 U.S.C. § 12102(2); that he is qualified to perform the essential functions of the job, with or without reasonable accommodation; and that he has suffered adverse employment ac tion because of his disability." Benson v. Northwest Airlines, Inc. , 62 F.3d 1108, 1 112 (8th Cir. 1995) (citing Wooten , 58 F.3d at 385). "Disability" i s definedas "(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 an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2).-4-

Gu tridge first claims that he is disabled under § 12102(2)(A) because hi s permanent lifting restriction, he argues, substantially limits one or more of his major life activities. The Equal Employment Opportunity Commis sion regulations define "major life a ctivities" as "functions such as caring for oneself, performing manual tasks , walk ing, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R

. § 1630.2(i) (1997). Gutridge argues that his c arpel tunnel syndrome and cubital tunnel sy ndrome, which resulted in him being placed on a permanent lifting restriction , substantially limits his major life activity of working. "Substantially lim its" with respect to the major life activity of working means "significantly restricted in the ability t o per form either a class of jobs or a broad range of jobs in various classes." Id

. § 1630.2(j)(3)(i). The regulation s further state that "[t]he inability to perform a single, particular job does not constitute a substantial limitation." Id. Gutridge has failed to present evidence that he is substantially limited in th e major life activity of working. See Robinson v. Neodata Serv s. Inc. , 94 F.3d 499, 501- 02 (8th Cir. 1996) (finding that a perm anent lifting restriction, which rendered plaintiff unable to perform the primary function of her previous position, did not substantially limit her major life activity of working). Gutridge's carpel and cubital tunnel syndromes have left him unable to perform the job of a Computerland service technician given the nature of Computerland's exclusive on-site repair business. He is still able, however, to function as a computer repair technician for other employers who either do no t require lifting as part of their job duties or can provide assistance. Ind eed, Gutridge has found such employment. Gutridge al so contends that his permanent lifting restriction substantially limits his major life activity of lifting. The EEOC regulations include lifting as an example of a major life activity. See29 C.F.R. Pt. 163 0, App. § 1630.2(i). A permanent lifting restric tion of not more than 45 pounds, however, neither renders him "[u]nable t o perform " nor "[s]ignificantly restrict[s]" his activity of lifting. 29 C.F.R

. § 1630.2(j)(1)(i), (ii). Further, we have held that, "[w]hile lifting is noted under theCases interpreting the definition of "handicap" under the Rehabilitation Act are 3 inst ructive for purposes of interpreting "disability" under the ADA. See Wooten v

. Farmland Foods , 58 F.3d 382, 385 n.2 (8th Cir. 1995). -5- regulations as a major life activity , a general lifting restriction imposed by a physician, without more, is insufficient to cons titute a disability within the meaning of the ADA." Snow v. Ridg eview Med. Ctr. , 128 F.3d 1201, 1207 (8th Cir. 1997) (citing Helfter v. UnitedParcel Serv., Inc. , 115 F.3d 613, 617 (8th Cir. 1997) and Aucutt v. Six Flags over Mid-America, Inc. , 85 F.3d 1311, 131 9 (8th Cir. 1996)). We find that Gutridge's pe rmanent lifting restriction does not impose a substantial limitation on his major life activity of lifting. Finally, Gutridge argues that he disabled under § 12102(2)(B) because "his five sepa rate surgeries, wraps, splints, medication, work restrictions, and inability t o perform simple manual tasks" created a record of impairment. Gutridge Br. at 14. For support, Gutridge relies on School Board of Nassau County, Florida v. Ar line , 480 U.S. 273 (1 987). In Arline , the Supreme Court held that a school teacher's hospitalization for tuberculosis nearly twenty years prior to her termination established a record o f impairment, and that she was therefore handicapped under the R ehabilitation Act. See 3 Arline , 480 U.S. at 281. The Court stated that the tuberculosis "was serious enough to require hospitalization, a fact more than sufficient to establish that one or more of her major life activities were substantially limited." Id. Gutridge thus contends that, i f hospitalization twenty years previous was sufficient in Arline to establish a record of impairment, then his course of treatment should also suffice. We disagree. We do not interp ret Arline to mean that simply being hospitalized establishes a record of i mpairment under the ADA. See Demming v. Housing and Redevelopment Auth., of Duluth, Minnesota , 66 F.3d 950, 955 (8th Cir. 1995). Such an interpretation would establish the "nonsensical proposition that any hospital stay is sufficient t o evidence a 'record of impairment.'" Taylor v. United States Postal Serv. , 946 F.2d-6-

1214, 1217 (6th Cir. 1991). We reject such a reading of Arline . Unfortunately, th e Court in Arline

offered little detail regarding the teacher's actual length of hospital stay or the severity of her affliction. Thus, we find Arline to offer little guidance. The EEOC regulations state that "a record of such i mpairment" means "a history of . . . a mental or physical impairment that substantially limits one or more major life activities." 29 C.F.R. § 1630.2(k). Gutridge has fail ed to show that one or more of his major life activities was substantially limited. Moreover, we reject Gutridge's argument that such a record of impairment was established during his period of treatment an d recovery. Disability under the ADA requires perm anent or long-term impairments, see 29 C.F.R. Pt. 1630, App. § 1630.2(j), and impairments while recovering from surgery are not evidence of a permane nt disability, see Heintzelman v. Runyon , 120 F.3d 143, 145 (8th Cir. 1997).

We conclude that Gutridge has failed to present a genuine issue of fact that he is disabled within the meaning of the ADA. In so doing, we necessarily rejec t Gutridge's argument that the District Court erred in dismissing his motion for summary judg ment. We therefore affirm the District Court's grant of summary judgment t o Computerland.
A true copy.

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