* This order and judgment is not binding precedent, e xcept under the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

### November 29, 2005

Clerk of Court UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

JANICE MARIE NICKOLA,

Plaintiff-Appellant,

v. STORAGE TECHNOLOGY CORPORATION,

Defendant-Appellee. No. 04-1403 (D.C. No. 02-M-1605 (MJW))

(D. Colo.)

ORDER AND JUDGMENT *

Before KELLY, McKAY , and McCONNELL , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist 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.-2-

Plaintiff Janice Marie Nickola, proceeding pro se h ere as in the district court, appeals the district court’s entry of summary judgment in favor of her former employer Storage Technology Corp. (StorageTe k) on her claims brought pursuant to the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (ADA). We exercise jurisdiction under 28 U.S.C. § 1291 and affirm. Ms. Nickola has filed a motion to supplement the re cord, which StorageTek opposes. We grant the motion to supplement. I. Background Ms. Nickola was employed in the manufacturing divis ion of StorageTek. Due to an October 2000 injury to her right hand and wrist, she was placed on light duty and then transferred to the Transitional Duty Department, where she worked until her employment with StorageTek ended. Ms. Ni ckola informed her employer that she would not return to any manufactu ring position, and she sought another type of job within the company. She was lo oking for a big promotion from her manufacturing job, R. Vol. I, Doc. 65, Ex. A, at 278, and she applied for positions such as director of corporate alliances, business process consultant, and strategic planning analyst, even though by her own admission, she was not qualified for them. Id. Doc. 65, Ex. A, at 284; Exs. L & M. Although she was qualified for secretarial work, she did not apply f or those jobs because she1 Ms. Nickola testified at her deposition that she di d not want a secretarial

position. Citing Franks v. Nimmo , 796 F.2d 1230, 1237 (10th Cir. 1986), she asserts that her deposition testimony is not bindin g. Ms. Nickola’s situation is unlike that in Franks because Ms. Nickola’s deposition testimony does no t conflict with her later affidavit. Both the testim ony and the affidavit explain that she did not want a secretarial position. Cf. id. (holding that plaintiff’s affidavit, that conflicted with his earlier sworn testimony, s hould be disregarded on summary judgment as raising a sham fact issue). -3- preferred a position more suited to her personality and career goals. 1 Id. Vol. I, Doc. 65, Ex. A, at 207; id. Vol. II, Doc. 84, Ex. 35, at 5. Ms. Nickola decli ned an opportunity for a position as a business analyst. Id. at 170-71. The medical evidence pertaining to Ms. Nickola’s ha nd and wrist injury consisted of the treatment notes of the on-site phy sician, Randy Reims, M.D., the second opinion of another physician, Dr. Fry, that Ms. Nickola required additional treatment, and the determination of the workers’ co mpensation board that Ms. Nickola’s injury resulted in an eighteen percen t permanent partial disability. Dr. Reims’s notes indicated that the only activitie s Ms. Nickola should limit were lifting, carrying, and removing staples with her ri ght hand. On February 23, 2001, Dr. Reims released her to work without restri ction, with the understanding that she had decided not to return to her former jo b in the manufacturing division. Ms. Nickola, who had not found another position wit h StorageTek, then left its employ. The parties dispute whether she resigned o r was discharged, but the circumstances of her termination are irrelevant, as explained below.2 Ms. Nickola has abandoned on appeal her claims base d on other legal

theories, including those for defamation, a federal contractor’s duty concerning affirmative action, and violation of Title VII. Sh e does not appeal the order denying her post-judgment motion. -4- After exhausting her administrative remedies, Ms. N ickola brought this action alleging that she was a qualified individual with a disability, as defined in the ADA, and that StorageTek discriminated against her on the basis of her disability. She asserted that her impairment subst antially limited her ability to perform the major life activity of “working.” The district court granted summary judgment to StorageTek and denied Ms. Nickola’s pos t-judgment motion. Ms. Nickola appeals the rulings against her on her ADA claims. 2 II. Summary Judgment Standards We review de novo the district court’s grant of sum mary judgment, viewing the record in the light most favorable to the party opposing summary judgment. Lanman v. Johnson County , 393 F.3d 1151, 1154-55 (10th Cir. 2004). Summary judgment is appropriate if there is no genuine issu e of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986); Fed. R. Civ. P. 56(c). Summary judgment will be granted to defendant if plaintiff “fails to make a showing sufficient to establish the existence of an element essential to that party ’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. , 477 U.S. at 322. “Thus, to-5-

survive summary judgment the plaintiff has the burd en to put forth sufficient evidence to warrant a verdict as a matter of law; a scintilla of evidence will not suffice.” Lanman , 393 F.3d at 1154-55. Ms. Nickola is representing herself on appeal so her pleadings will be liberally construed

. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972). III. Americans with Disabilities Act The ADA requires StorageTek to provide “reasonable accommodations to the known physical or mental limitations of an othe rwise qualified individual with a disability who is an applicant or employee, unles s [StorageTek] can demonstrate that the accommodation would impose an undue hardsh ip on the operation of [its] business.” 42 U.S.C. § 12112(b)(5)(A). A “qualifi ed individual with a disability” is a person “who, with or without reasonable accomm odation, can perform the essential functions of the employment position that [she] holds or desires.” Id. § 12111(8). In this context, “disability” means th at an individual has “(A) a physical or mental impairment that substantially li mits 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.” Id. § 12102(2). Ms. Nickola asserts that she is a qualified individ ual with a disability who has a physical impairment that substantially limits the major life activity of working. She also alleges that StorageTek discrimi nated against her on the basis-6-

of her actual disablity and because it regarded heras disabled. We determine that she has waived any claim based on a record of her i mpairment because she did not raise it in her opening brief on appeal. State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994). Ms. Nickola bears the burden of establishing a prima facie case. See MacKenzie v. City & County of Denver , 414 F.3d 1266, 1274 (10th Cir. 2005) (holding in summary-judgment context, “plaintiff in itially must raise a genuine issue of material fact on each element of the prima facie case”). To do so, she must demonstrate that (1) she is a disabled person as defined by the ADA; (2) she is qualified, with or without reasonable accommodat ion; and (3) she was discriminated against due to her disability. Aldrich v. Boeing Co. , 146 F.3d 1265, 1269 (10th Cir. 1998). We conclude that Ms. Nickol a has not established the first criterion – that she is disabled as defined by the ADA – and, therefore, the other criteria are irrelevant, including the issue of whe ther she resigned or was fired. (A) Actually Disabled Under § 12102(2)(A), a plaintiff must establish that “an impairment substantially limits at least one major life activity.” Doebele v. Sprint/United Mgmt. Co. , 342 F.3d 1117, 1129 (10th Cir. 2003). “‘Substant ially’ in the phrase ‘substantially limits’ suggests ‘considerable’ or ‘ to a large degree.’” Toyota Motor Mfg., Ky., Inc. v. Williams , 534 U.S. 184, 196 (2002). A claimant is not-7-

disabled for ADA purposes merely by having an impairment. Id. at 195. A claimant must also “demonstrate that the impairmentlimits a major life activity.” Id. Ms. Nickola asserts that her wrist injury prevents her from performing the essential functions of her former manufacturing job pertaining to pushing tubing onto a plastic elbow joint and pounding the parts i nto position. To establish that this injury is disabling, she relies on the notes f rom Dr. Reims and Dr. Fry and the determination from the workers’ compensation board that she sustained an eighteen percent permanent partial disability. She concedes, however, that her wrist impairment does not limit other activities an d that she does not consider herself to be disabled. R. Vol. I, Doc. 65, Ex. A, at 329-30; id. Ex. EE, at 1. The doctors’ reports and workers’ compensation determin ation, without evidence of substantial limitations caused by the impairment, a re insufficient to establish disability status under the ADA. Cf. Toyota Motor , 534 U.S. at 198 (holding evidence of medical diagnosis of an impairment is i nsufficient, standing alone, to prove disability status in performing manual tasks) . We hold that Ms. Nickola’s showing that she cannot perform the specific manual tasks required for her former manufacturing position is insufficient to demonstrate genuine fact issues as to whether she was substantially limited in the major life activity of working. Therefore, because she cannot make out the first el ement of a prima facie case,-8-

Ms. Nickola’s ADA “actually disabled” claim must fa il, and the entry of summary judgment in StorageTek’s favor was correct. (B) Regarded as Disabled Ms. Nickola next asserts that she is entitled to pr otection under the ADA because StorageTek regarded her as disabled. There are two ways an individual may qualify under the “regarded as” section, § 1210 2(2)(C): (1) the employer “mistakenly believes that a person has a physical i mpairment that substantially limits one or more major life activities,” or (2) t he employer “mistakenly believes that an actual, nonlimiting impairment substantiall y limits one or more major life activities.” Sutton v. United Air Lines, Inc. , 527 U.S. 471, 489 (1999). To withstand summary judgment under this rule, Ms. Nic kola must come forward with triable evidence showing that StorageTek regar ded her as substantially limited in her identified major life activity of working. Rakity v. Dillon Companies, Inc. , 302 F.3d 1152, 1162 (10th Cir. 2002)

. “[I]n 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 t he employer regarded him or her as being substantially limited in performing ei ther a class of jobs or a broad range of jobs in various classes.” Steele v. Thiokol Corp. , 241 F.3d 1248, 1256 (10th Cir. 2001) (quotation omitted).-9-

Ms. Nickola argues that StorageTek regarded her as disabled because it did not offer her a job after she was medically release d and because it could not find a position in the entire organization for her. She claims that since StorageTek was aware of her on-the-job injury that prevented h er from returning to her manufacturing position, its failure to find her a d ifferent job demonstrates that it regarded her as disabled under the ADA. See R. Supp. Vol. IA, at 14. Ms. Nickola’s argument is disingenuous. First, Sto rageTek invited and assisted her to apply for other jobs within the company, which indicated that it did not regard her as substantially limited in her ability to work. See McGeshick v. Principi , 357 F.3d 1146, 1151 (10th Cir. 2004) (stating emp loyer’s invitation to plaintiff to apply for jobs indicated that employer“did not perceive [plaintiff] as substantially limited in his ability to perform maj or life activities”). Moreover, Ms. Nickola concedes that StorageTek provided her a n opportunity for a position as a business analyst, but she declined it. StorageTek’s job opportunity “clearly shows [Ms. Nickola] was not perceived as unable to perform an entire class or broad range of jobs.” Lanman , 393 F.3d at 1158 (reviewing employer’s continued willingness to employ plaintiff); see also Rakity , 302 F.3d at 1164 (holding employer’s continuing willingness to employ plainti ff in his current position amounted to undisputed evidence that it did not reg ard him as substantially limited in his ability to work); cf. Doebele , 342 F.3d at 1134 (holding fact-finder-10-

could infer that supervisors believed plaintiff was precluded from broad range of jobs by their refusal to consider position for plai ntiff that would implement her doctor’s requested accommodations at a time company was hiring 200-300 people a week). Accordingly, we hold that Ms. Nickola has failed to demonstrate a genuine issue of material fact on her claim that St orageTek regarded her as disabled. Consequently, summary judgment in favor of StorageTek on this claim was appropriate. IV. Conclusion Ms. Nickola’s motion to supplement the record is gr anted. The judgment of the district court is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Michael W. McConnell Circuit Judge