* This order and judgment is not binding precedent, e xcept under the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

### AUG 5 1999 

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

GEORGE GATEWOOD,

Plaintiff-Appellant,

v. AMERICAN AIRLINES, INC.; SABRE GROUP, INC., formerly known as Sabre Computer Center, an Operations Division of American Airlines, Defendants-Appellees. No. 98-5250 (D.C. No. 97-CV-291) (N.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO , BARRETT , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

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. Plaintiff-appellant George Gatewood appeals the dis trict court’s grant of summary judgment in favor of defendants American Ai rlines, Inc. and SABRE Group, Inc. on his civil rights claims brought purs uant to 42 U.S.C. §§ 2000e-1 through 2000e-17 (Title VII of the Civil Rights Actof 1964) and 42 U.S.C. § 1981; his claims for violation of the Americans w ith Disabilities Act, 42 U.S.C. §§ 12101 through 12213 (ADA); and his claims for vi olation of the Employee Retirement Income Security Act, 29 U.S.C. § 1140 (E RISA). We affirm. Plaintiff began working for American Airlines as a computer specialist on March 10, 1986. On August 20, 1988, plaintiff injured his back while carrying a box of computer paper. By September 18, 1988, hi s injury had worsened, and plaintiff was placed on paid injury leave until Jan uary 6, 1989, during which time he underwent two surgeries. Plaintiff returned to work between January 6, 1989 and October 12, 1989, until his injury again requir ed him to discontinue working. Since then, he has undergone two more back surgerie s. Plaintiff was placed on a medical leave of absence on October 12, 1989. Under American Airlines regulations, an employee may only remain on such a leave of absence for five years, thereafter he eith er must be cleared by American Airlines to return to work or administratively terminated. See R. I, doc. 40,-3-

Regulation 145-7(B) & (C), p. 27 (authorizing sick leave of absences for employees injured “while on or off duty,” but limit ing such leave of absences to five years); Appellant’s Reply Br., Regulation 145- 8(G), pp. 4-5 (setting out benefits for employees injured on duty and stating such injured employees may remain on sick leave of absence for five years befo re administrative termination). On August 5, 1992, plaintiff was advised by letter that he would be administratively terminated five years after his le ave of absence commenced. Plaintiff did not respond to this letter. On Octob er 10, 1994, his employment with American Airlines was administratively terminated. On October 21, 1996, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), and on March 31, 1997, he filed this action. In September 1997, plaintiff received a right to sue letter fromthe EEOC. Plaintiff was represented by three separate attorne ys in the district court, but dismissed each of them. On June 24, 1998, defe ndants filed a motion for summary judgment. After two extensions of time, pl aintiff was given until August 10, 1998, to respond to defendants’ motion, and was warned that if he failed to respond by then “[d]efendants’ statement of undisputed facts will be deemed admitted.” R. I, doc. 52 at 2. Plaintiff d id not respond by the deadline, instead filing an unsupported response brief on Aug ust 11, 1998, and an amended response brief with documentation on August 13, 199 8. The district court granted-4-

defendants’ motion for summary judgment, taking the ir undisputed facts as true, and ruling that all of plaintiff’s claims were unti mely. The court also ruled that plaintiff’s ADA claim failed on the merits because he could not establish he was “qualified” for the job; that plaintiff failed to p resent evidence that defendants’ legitimate nondiscriminatory reason for his termination was pretextual; and that his ERISA claims failed because the claimed benefit s were not covered by ERISA and because there was no evidence that plaintiff wa s terminated for any reason other than that advanced by defendants. We review a grant of summary judgment de novo, appl ying the same standard as the district court. See Siemon v. AT&T Corp. , 117 F.3d 1173, 1175 (10th Cir. 1997). Summary judgment is appropriate if “there is no 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). When the d istrict court deems a moving party’s facts admitted because a nonmoving party fa iled to timely respond, we review the ensuing grant of summary judgment for an abuse of discretion. See Miller v. Department of the Treasury , 934 F.2d 1161, 1162 (10th Cir. 1991). We conclude the district court did not abuse its di scretion in deeming defendants’ uncontroverted facts admitted. Plainti ff was aware of the need to respond to the summary judgment motion, was grantedseveral extensions of time in which to file his response, and was expressly warned that a failure to respond-5-

by August 10, 1998, would result in the acceptance of defendants’ facts as admitted. Pro se litigants are required to follow the same rules of procedure, including local court rules, as those governing other litigants. See Green v. Dorrell , 969 F.2d 915, 917 (10th Cir. 1992); Bradenburg v. Beaman , 632 F.2d 120, 122 (10th Cir. 1980). As defendants’ facts we re properly deemed admitted, including the fact that plaintiff filed his EEOC co mplaint more than 300 days after he was terminated and the fact that plaintiff was terminated because he had been on leave of absence for more than five years, summary judgment was appropriate. Even if we were to consider the evidence submitted by plaintiff, summary judgment would have been proper. Construing plaint iff’s exhibits liberally, he may have raised a dispute whether he filed an initi al discrimination complaint with the EEOC within 300 days of his termination. This issue is irrelevant, however, because the district court was correct in ruling that plaintiff’s claims failed on their merits. Plaintiff’s ADA claim fails because he did not rais e a factual dispute whether he was “qualified” to return to his job. A lthough he argues that his treating physicians released him to return to his f ormer job, no such evidence was presented to the district court, and there is no ev idence that plaintiff could perform the lifting requirements of his position. Defendants were not required1 We note that our recent decision in Smith v. Midland Brake, Inc. ,

No. 96-3018, 1999 WL 387498, *19 (10th Cir. June 14 , 1999), does not apply because plaintiff did not show that he requested re assignment and did not specifically identify any positions for which he wa s qualified that were vacant when reassignment was requested. -6- under the ADA to accommodate plaintiff’s disabilityby eliminating an essential function of his job. See Smith v. Blue Cross Blue Shield of Kan., Inc. , 102 F.3d 1075, 1076 (10th Cir. 1996). 1
Plaintiff’s race discrimination claim fails because he did not present any evidence that members of other races were treated d ifferently, or that he was terminated for any reason other than defendants’ no ndiscriminatory policy limiting leave of absences to five years. Plaintif f attempts to show pretext by arguing that defendants wrongfully terminated him under American Airlines Regulation 145-7, and that, as an employee injured on duty, he should have been kept on the payroll indefinitely pursuant to Regulation 145-8. This argument is without merit. Regulation 145-8 provides that afte r an employee has exhausted his eighty days of injury-on-duty salary continuanc e, and has either exhausted or elected not to receive his accrued sick leave, the employee is to be placed on an unpaid sick leave of absence for a maximum of five years. See Regulation 145-8(G), pp. 4-5, attached to plaintiff’s Reply Br . Thus, although plaintiff was-7-

maintained in an injury-on-duty status during the f irst eighty days after his back injury, he was properly placed on a sick leave of absence thereafter. Finally, plaintiff’s ERISA claims fail because the claimed benefits are not covered by ERISA, see 29 C.F.R. § 2510.3-1(b) (excluding sick pay, vacat ion pay, and holiday pay from coverage of employee bene fit plans), and because there was no evidence that defendants’ proffered reason f or the termination was pretextual. The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED. The mandate shall issue f orthwith.

Entered for the Court

Robert H. Henry Circuit Judge