*

After examining the briefs and appellate record, this 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). The case is

therefore ordered submitted without oral argument. This order and judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED

United States Court of Appeals

Tenth Circuit

May 5, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

HARLEY BARFOOT,

Plaintiff-Appellant,

v.

PUBLIC SERVICE COMPANY OF

COLORADO, d/b/a XCEL ENERGY,

Defendant-Appellee.

No. 09-1186

(D.C. No. 1:08-CV-00071-RPM)

(D. Colo.)

ORDER AND JUDGMENT*

Before HARTZ, McKAY, and ANDERSON, Circuit Judges.

Plaintiff Harley Barfoot appeals from the district court’s entry of summary

judgment in favor of his former employer, defendant Public Service Company of

Colorado (the Company), on his claims for unlawful discrimination under the

Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, and the Age

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1

In a third claim Mr. Barfoot asserted that the Company retaliated against

him for asserting ADA and ADEA claims, as well as for having filed a workers’

compensation claim. His retaliation claim was dismissed without prejudice by

stipulation of the parties in district court, and is not at issue on appeal. 

2

For this reason, we have not considered the new evidentiary assertions

included in Mr. Barfoot’s briefs. 

-2-

Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634.1 We have

jurisdiction under 28 U.S.C. § 1291 and affirm.

I. FACTS AND PROCEDURAL HISTORY

“We review the district court’s grant of summary judgment de novo,

applying the same standards as the district court.” Reinhardt v. Albuquerque Pub.

Schs. Bd. of Educ., 595 F.3d 1126, 1131 (10th Cir. 2010). “Summary judgment is

appropriate ‘if the pleadings, the discovery and disclosure materials on file, and

any affidavits show that there is no genuine issue as to any material fact and that

the movant is entitled to judgment as a matter of law.’” Id. (quoting

Fed. R. Civ. P. 56(c)(2)). Consistent with this standard, “our review of a grant of

summary judgment is limited to the record before the trial court at the time it

made its ruling.”2

 Magnum Foods, Inc. v. Continental Cas. Co., 36 F.3d 1491,

1502 n.12 (10th Cir. 1994). We view the facts from the district court record in

the light most favorable to Mr. Barfoot, the nonmoving party. See Scott v.

Harris, 550 U.S. 372, 380 (2007). 

Mr. Barfoot began work in 1982 at the Company’s coal-fired Cameo

Station electric generating power plant in Palisade, Colorado. In 1997 he was

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assigned the newly created job title of “Plant Specialist A” (PSA) and chose to

work in the operations department inside the plant. One of the functions of the

PSA job was “to pull dry bottoms” by removing the ash and clinkers from the

base of the boiler. R., Vol. 1, Part 2 at 258. This was a normal function for the

PSAs working in the plant, but was sometimes assigned to other PSAs. It was

“hot, dirty and strenuous work” that was ordinarily performed by employees in

pairs for safety. Id. While pulling dry bottoms, Mr. Barfoot injured his elbow in

2000 and injured his back in 2001. After surgery on his elbow, he was on light

duty for a few months, but he did not have any permanent restrictions. 

Mr. Barfoot spent the last 15 months of his employment (from January 1,

2004, until March 31, 2005) working as a coal handler. Management retained the

discretion to assign PSAs to that task, and Mr. Barfoot had asked to be assigned

to coal works. 

In October 2004 Mr. Barfoot was referred for a functional capacity

evaluation. This resulted in his doctor’s setting out 13 or 14 permanent

restrictions on his work, including that he avoid pulling dry bottoms. Charles

Hogue, the Cameo manager, first learned of Mr. Barfoot’s new restrictions on

March 7, 2005, and held an accommodation meeting with Mr. Barfoot and others. 

The meeting concluded that Mr. Barfoot could not be accommodated to perform

all the essential duties of the job of a PSA. Mr. Barfoot was later granted

long-term-disability benefits. 

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Mr. Barfoot filed a complaint and an amended complaint asserting claims

of discrimination. He alleged that the Company had improperly forced him to

take long-term disability in March 2005 (when he was 55 years old), even though

he had been successfully performing his coal-handling job for 15 months despite

his restrictions. In his view, other PSA duties, such as pulling dry bottoms, were

not essential duties of his job. He thought of coal handling as a separate position

because employees were doing it as a full-time job. The Company asserted,

however, that coal handling was an assignment, not a posted job, and that the

assignment to Mr. Barfoot was temporary. Mr. Barfoot admitted that Mr. Hogue

had told him that the assignment was temporary and that he would have to rotate

back to an inside job. 

The Company moved for summary judgment. At the conclusion of the

hearing the district court granted the motion. The court rejected Mr. Barfoot’s

ADA claim, ruling that he had failed to show “that the employer . . . regarded him

as disabled with respect to any major life activity.” Supp. R., Vol. 1 at 27. And

the court reasoned that Mr. Barfoot’s ADEA claim failed because his only

evidence of discrimination was that Rusty Leach had been treated differently, but

Mr. Barfoot had “not shown that Rusty Leach [was a] similarly situated, younger

employee.” Id. at 28.

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3 In the absence of extraordinary circumstances not present here, we

generally do not consider arguments raised for the first time on appeal. Smith v.

Sec’y of N.M. Dep’t of Corr., 50 F.3d 801, 814 n.22 (10th Cir. 1995). Therefore,

we do not consider Mr. Barfoot’s new claim for intentional infliction of emotional

distress. 

-5-

II. DISCUSSION

Mr. Barfoot was represented by counsel throughout the district-court

proceedings, but he appears in this court pro se. We therefore have construed his

appellate filings liberally, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972)

(per curiam), and “have tried to discern the kernel of the issues [ ]he wishes to

present on appeal,” de Silva v. Pitts, 481 F.3d 1279, 1283 n.4 (10th Cir. 2007). 

Mr. Barfoot states that he “will point out, according to the definition of the ADA,

where the Defendant violated the plaintiffs rights, and caused him to be

discriminated against according to the definitions of the ADA and ADEA.” Aplt.

Opening Br. at 23 (full capitalization omitted). We read his briefs to raise

sufficiently the following two issues: (1) with respect to his ADA claim, that the

Company regarded him as disabled in the major life activity of working; and

(2) with respect to his ADEA claim, that Rusty Leach and other coworkers were

similarly situated, younger employees who were accommodated for their

restrictions instead of losing their jobs.3

 

A. ADA Claim

“In this circuit, a person is regarded as disabled when (1) a covered entity

mistakenly believes that a person has a physical impairment that substantially

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limits one or more major life activities, or (2) a covered entity mistakenly

believes that an actual, nonlimiting impairment substantially limits one or more

major life activities.” Johnson v. Weld County, Colo., 594 F.3d 1202, 1219

(10th Cir. 2010) (brackets and internal quotation marks omitted). “To establish

an ADA disability under [42 U.S.C. § 12102(2)](A), our precedent indicates that a

plaintiff must articulate with precision both [his] impairment and the major life

activity it substantially limited.” Id. at 1218 (internal quotation marks omitted). 

Mr. Barfoot appears to argue on appeal that the relevant major life activity

is working. But even though working is a major life activity, the performance of

an individual job or a small group of jobs is not. See Dillon v. Mountain Coal

Co., L.L.C., 569 F.3d 1215, 1218 (10th Cir. 2009) (“a plaintiff must demonstrate

that his employer regarded him as significantly restricted in performing either (1)

a class of jobs; or (2) a broad range of jobs in various classes”), cert. denied, 130

S. Ct. 1285 (2010); 42 U.S.C. § 12102(2)(A). Mr. Barfoot has not identified a

class of jobs or broad range of jobs that the Company believed him to be

substantially limited in performing. He has pointed only to the Company’s belief

that he could not perform the job of a PSA. We affirm the district court’s grant of

summary judgment to the Company on Mr. Barfoot’s ADA claim. 

B. ADEA Claim

We review de novo the district court’s conclusion that Mr. Barfoot failed to

show that Rusty Leach was a similarly situated coworker who was treated

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-7-

differently. See Thomas v. IBM, 48 F.3d 478, 484-85 (10th Cir. 1995). 

Mr. Barfoot was required to show “that comparable employees who were not in a

protected age category did not receive comparable adverse employment action.” 

Id. at 485. His appellate briefs make numerous factual allegations, but he fails to

“direct us to the location in the voluminous record where we can find support” for

his contention that Mr. Leach was a similarly situated, younger coworker. 

Phillips v. James, 422 F.3d 1075, 1081 (10th Cir. 2005). In the absence of such

assistance, “we will not sift through the record to find [evidentiary] support for

this argument.” Id. “[T]he court cannot take on the responsibility of serving as

the [pro se] litigant’s attorney in constructing arguments and searching the

record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.

2005). In addition, we will not consider Mr. Barfoot’s new assertion regarding

other former coworkers, because this assertion was not presented to the district

court. See Smith, 50 F.3d at 814 n.22; Magnum Foods, 36 F.3d at 1502 n.12. 

Hence, we affirm the district court’s grant of summary judgment to the Company

on Mr. Barfoot’s ADEA claim. 

AFFIRMED.

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge

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