* This order and judgment is not binding precedent, e xcept under the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

### MAR 26 1998 

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

JENNIFER MARTINEZ and ANTHONY MARTINEZ, parents and guardians of Louis Martinez and Mathew Martinez,

Plaintiffs-Appellants,

v. CITY OF ROY, a political subdivision of the State of Utah; and MARIE DAY, Defendants-Appellees. No. 97-4095 (D.C. No. 95-CV-118-B) (D. Utah)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of1 We note that during the course of these proceedings , Ms. Day’s name has

changed to Marie Day-Salazar. To avoid confusion, we will continue to refer to her as Marie Day. -2- 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. Plaintiffs Jennifer and Anthony Martinez brought th is action on behalf of their two minor children, Louis and Mathe w Martinez, claiming a violation of Title II of the Americans With Disabil ities Act (ADA), 42 U.S.C. §§ 12101-12213. Plaintiffs also brought state law claims for violation of Utah Code Ann. § 26-30-1, and for intentional infliction of emotional distress. Finding that the children were not qualified persons under the ADA, that section 26-30-1 was not applicable to the facts of the case, and th at defendants actions did not rise to the level of outrageous and intolerable conduct necessary to maintain an action for intentional infliction of emotional distress, t he district court granted summary judgment to defendants City of Roy and Marie Day. 1 Plaintiffs appeal, and we affirm.
I. Background The Martinez children have a rare skin condition ca lled keratosis lichenoides chronica (KLC), which causes red scalin g places on the skin. Sometime in December 1994, plaintiffs took Louis an d Mathew to swim in-3-

the pool at the Roy City Recreational Complex, mana ged by Marie Day. The parties’ various recounts of what took place seem t o be somewhat muddled, but because we must construe the factual record in a li ght favorable to plaintiffs, we will relate plaintiffs’ version of the incident. According to Mr. Martinez, he requested to speak to Ms. Day in order to get permission to take a sample of the pool water b ecause, in Mr. Martinez’ opinion, the water seemed to be beneficial to the c hildren’s KLC. It was undisputed that when Ms. Day learned that the child ren had a skin problem, she informed Mr. Martinez that she could not allow the children to swim in the pool until she received some verification from a doctor that the skin condition was not contagious. Mr. Martinez alleged that Ms. Day said the children looked contagious to her, and that she could not allow the m in the pool. Also according to Mr. Martinez, Ms. Day described the children’s c ondition as an “awful disease,” and she said they looked “contaminated.” Mr. Martinez and Ms. Day then became involved in a verbal altercation including swear words, and Ms. Day threatened to ca ll the police if he did not leave the facility. Subsequent to this incident, p laintiffs filed their complaint in federal court, asserting that this amounted to disc rimination against the children because of their skin condition, and caused the chi ldren severe emotional distress.-4- II. Discussion A. Standard of Review “We review the grant of summary judgment de novo, applying the same legal standard used by the district court under Fed . R. Civ. P. 56(c).” Siemon v. AT&T Corp. , 117 F.3d 1173, 1175 (10th Cir. 1997). We constru e the facts and all inferences therefrom in the light most favorabl e to the nonmoving party. See id. A grant of summary judgment is appropriate if “th ere is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

B. ADA First, plaintiffs assert that, in denying the child ren access to a public swimming pool, the children were discriminated agai nst because of a disability in violation of the ADA. Under the ADA, “no qualifiedindividual with a disability shall, by reason of such disability, be excluded fr om participation in or be denied the benefits of the services, programs, or activiti es of a public entity, or be subjected to discrimination by any such entity.” 4 2 U.S.C. § 12132. Here, the district court determined that the children were no t qualified individuals for the purposes of the ADA. We agree. Pursuant to the ADA, “a disability . . . with respe ct to an individual” constitutes “(A) a physical or mental impairment th at substantially limits one-5-

or more of the major life activities of such indivi dual; (B) a record of such an impairment; or (C) being regarded as having such animpairment.” Id. § 12102(2). “The ADA’s implementing regulations de fine ‘major life activities’ as ‘functions such as caring for oneself, performin g manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.’” MacDonald v. Delta Air Lines, Inc. , 94 F.3d 1437, 1444 (10th Cir. 1996) (quoting 29 C .F.R. § 1630.2(i)). The regulations define a physical or mental impairm ent as: (1) Any physiological disorder, or condition, cosme tic disfigurement, or anatomical loss affecting one or more of the fol lowing body systems: neurological, musculoskeletal, special sen se organs, respiratory (including speech organs), cardiovascul ar, reproductive, digestive, genito-urinary, hemic and lymphatic, ski n, and endocrine;

or (2) Any mental or psychological disorder, such as m ental retardation, organic brain syndrome, emotional or mental illness , and specific learning disabilities. 29 C.F.R. § 1630.2(h). Dr. Sheryll L. Vanderhooft, the children’s physician, characterized KLC as “not associated with any systemic effects, and . . . as being a disorder which has primarily cosmetic consequences.” R. Vol. I, April 22, 1996 letter to plaintiffs’ counsel. Dr. Vanderhooft testified that the condit ion was not contagious. See id. , Deposition of Sheryll Vanderhooft, M.D., at 23.-6-

In seeking summary judgment, defendants asserted th at the children’s KLC did not constitute a “physical or mental impairment ” within the meaning of the ADA and that, even if it did, it did not “substanti ally limit” a major life activity. In response, plaintiffs conceded that the children did not suffer from a qualifying physical or mental impairment, but, instead, were p erceived by defendants as having an impairment that substantially limits a ma jor life activity. Plaintiffs argued that even though the children did not have a ny of the impairments defined in the regulations, Ms. Day treated them as if they had such an impairment. A person is regarded as having an impairment that s ubstantially limits a major life activity if he (1) Has a physical or mental impairment that does n ot substantially limit major life activities but is treated by a cov ered entity as constituting such limitation; (2) Has a physical or mental impairment that substantially limits major life activities only as a result of the attit udes of others toward such impairment; or (3) Has none of the impairments defined in . . . [2 9 C.F.R. § 1630.2(h)] but is treated by a covered entity as having a substantially limiting impairment. 29 C.F.R. § 1630.2(l). Concluding, as we must, that recreational swimming is not a major life activity under the ADA, we deem it unnecessary to e xamine Ms. Day’s attitude toward the children’s impairment, if any. It appea rs clear that Ms. Day’s request-7-

for a doctor’s verification of noncontagion was mad e out of concern for the safety and welfare of the other persons using the facility . Contrary to plaintiffs’ contention, it was not evident that Ms. Day intende d to discriminate against the children based on any real or perceived disability, and therefore, we conclude that the district court was correct in its determination that no reasonable jury could have found otherwise.

C. Utah Health Code Next, plaintiffs assert that Ms. Day’s refusal to a llow the children to swim without written verification that the children’s sk in condition was not contagious violated the Utah Health Code, Utah Code Ann. § 26- 30-1. Section 26-30-1(1) provides that “[t]he blind, visually handicapped, h earing impaired, or otherwise physically disabled person has the same rights and privileges in the use of highways, streets, sidewalks, walkways, public buil dings, public facilities, and other public areas as able-bodied persons.” Althou gh neither the state statute or state judicial interpretation offers a definitio n of “physically disabled person,” defendants urge the applicability of the definition contained in the Utah Human Services Code, Utah Code Ann. §§ 62A-5-101 - 403. That statute defines a “disability” as a condition which is “severe” and “ chronic, which “is likely to continue indefinitely,” and which results in limitation to at least three of the enumerated major life activities, including “(A) se lf-care; (B) receptive and-8-

expressive language; (C) learning; (D) mobility; (E ) self-direction; (F) capacity for independent living; or (G) economic self-suffic iency.” Id. § 62A-5- 101(4)(a)(iii). Whether, as defendants urge, we apply the definitio n contained in the state Human Services Code, or that formulated by judicial and regulatory interpretation of the ADA previously discussed, it is clear that p laintiffs have failed to establish that the children’s KLC is a qualifying physical di sability. Therefore, the district court also was correct in granting summary judgmentto defendants on this state law claim.

D. Intentional Infliction of Emotional Distress Lastly, plaintiffs assert that Ms. Day’s actions an d behavior in refusing the children access to the pool on the evening in q uestion constitutes intentional infliction of emotional distress. Under Utah commo n law, in order to establish a cause of action for intentional infliction of emo tional distress, plaintiffs must establish “(1) outrageous conduct by the defendant; (2) the defendant’s intent to cause, or the reckless disregard of the probabilityof causing, emotional distress; (3) severe emotional distress; and (4) an actual an d proximate causal link between the tortious conduct and the emotional distress.” White v. Blackburn , 787 P.2d 1315, 1317 (Utah Ct. App. 1990). The Utah Supreme Court has held that the plaintiff must show the offensive behavior to have been perpetrated “(a) with the-9-

purpose of inflicting emotional distress, or, (b) w here any reasonable person would have known that such would result; and his ac tions are of such a nature as to be considered outrageous and intolerable in t hat they offend against the generally accepted standards of decency and morality.” Samms v. Eccles , 358 P.2d 344, 347 (Utah 1961). Plaintiffs assert that Ms. Day’s refusal to allow the children to swim, her remarks regarding the children’s skin condition , and her swearing match with Mr. Martinez were acts intended to cause the c hildren emotional distress. Mr. Martinez testified in deposition that Ms. Day r efused to allow the children access to the pool without a doctor’s note saying that the KLC was not contagious, and in so doing, referred to the childr en’s condition as “an awful disease” and stated that the children “looked conta minated.” R. Vol. I, Deposition of Anthony Martinez at 40, 43. He furth er testified that Ms. Day began using “obscene language” which resulted in a verbal exchange in which Mr. Martinez also used obscene language, id. at 46-47, and ultimately Ms. Day threatened to call the police and have Mr. Martinez removed from the facility, id. at 48. Mr. Martinez testified that the children we re present for, and witness to, this exchange. Id. at 47-48. Mr. Martinez alleged that upon leaving the facility, the children cried and wanted to know what was wron g with their faces. See id. at 26. Although not entirely clear, Mr. Martinez s eemed to allege that this-10-

incident caused his older child, Louis, to drop outof preschool because of the KLC on his face. See id. Mrs. Martinez’ deposition testimony indicates that, although Mr. Martinez testified that she was with the children, see id. at 47-48, she did not know if the children overheard the exchange between Ms. Day andtheir father, see id. , Deposition of Jennifer J. Martinez at 27. She furt her testified that the children’s tears following the incident were because they coul d not go swimming. See id. at 27-28. Contrary to her husband’s testimony, Mrs . Martinez testified that it was Mathew who was in preschool at the time, and Lo uis was in kindergarten. See id. , Plaintiffs’ Memorandum in Opposition to Defendant s’ Motion for Summary Judgment, ex. C at 21. She further testifi ed that, although Louis did not want to go to school for a few days, he did notdrop out of kindergarten. See id. at 22. Although Ms. Day testified that she did tell Mr. an d Mrs. Martinez they needed a medical document before the children could swim, in contradiction to Mr. Martinez’ testimony, Ms. Day stated that she di d not see the children at the time of the incident, had never seen the Martinez c hildren prior to their depositions, and that she had not described their c ondition as “awful” or “infectious.” Appellees’ Supp. App. at 46. Ms. Day asserted that it was her impression that Mr. Martinez was “concerned” about the children’s skin-11-

condition, and he approached her only to obtain per mission for the children to swim. Id. At the children’s depositions, when asked whetherthey recognized Ms. Day, both Mathew and Louis indicated that they had never seen her before. See id. , Deposition of Louis Martinez at 5-6; Deposition o f Mathew Martinez at 9. It is clear that there is some dispute as to the fa cts surrounding the nature of the exchange between Mr. Martinez and Ms. Day an d whether the children were in proximity at the time. Construing the fact s in favor of plaintiffs, see Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996) (“factual rec ord and reasonable inferences therefrom” are to be construed in a ligh t most favorable to the nonmoving party), however, we find no evidence in the record which would indicate that Ms. Day’s conduct, even if as portray ed by plaintiffs and even if witnessed by the children, was so outrageous and intolerable as to constitute an intentional infliction of emotional distress. It i s undisputed that Ms. Day’s obscene language was directed at Mr. Martinez and n ot at the children. Moreover, the only manifestations of emotional distress attributed to the children were some crying following the incident and the ass ertion that Louis had been reluctant to go to school for a few days. In lightof Mrs. Martinez’ testimony that the children were crying because they could not go swimming, see R. Vol. I, Deposition of Jennifer J. Martinez at 27-28, and pl aintiffs’ failure to establish any-12-

link between the incident and Louis’ alleged absenc e from school, we conclude that plaintiffs failed to establish the necessary e lements of severe emotional distress. See Treff v. Galetka , 74 F.3d 191, 195 (10th Cir. 1996) (holding that the failure to prove an element of the claim renders re maining facts immaterial). Because “[s]ummary judgment ‘necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits,’” Public Serv. Co. v. Continental Cas. Co. , 26 F.3d 1508, 1517 n.8 (10th Cir. 1994), the district court’s grant of summary judgment to defendants on this cla im was appropriate. The judgment of the United States District Court fo r the District of Utah is AFFIRMED.

Entered for the Court

David M. Ebel Circuit Judge