* This order and judgment is not binding precedent, e xcept under the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

### MAY 27 1997 

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

GREGORY P. BURGARD,

Plaintiff-Appellant,

v. SUPER VALU HOLDINGS, INC., also known as Wetterau, Incorporated, doing business as Ohio Cubco, Inc., a Missouri corporation,

Defendant-Appellee. No. 96-1199 (D.C. No. 95-N-1961) (D. Colo.)

ORDER AND JUDGMENT *

Before EBEL, HENRY, 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 of 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.-2-

Plaintiff commenced an action in district court all eging defendant violated the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-12213, by terminating him from his union position and late r rehiring him for a lowerpaying nonunion position. The district court grant ed defendant’s motion for summary judgment. Plaintiff raises three issues onappeal: (1) whether the district court improperly denied his motion to supp lement his response to defendant’s motion for summary judgment; (2) whethe r in ruling on the summary judgment motion the district court viewed the facts in the light most favorable to him; and (3) whether the district court erred in co ncluding he did not make a prima facie case under the ADA. We exercise jurisd iction under 28 U.S.C. § 1291, and we affirm. The relevant facts are as follows. Plaintiff injur ed his back while working for defendant in a union warehouse position as a wr apper. All union warehouse positions were covered by a collective bargaining a greement (CBA). At the time of the injury, plaintiff had mid-level seniority inthe union. After plaintiff took a medical leave, Dr. Filner released him to work withlifting restrictions of twentyfive pounds frequently and fifty pounds occasionall y. Dr. Ladwig, defendant’s company doctor, examined plaintiff and issued a work release concurring with the restrictions of Dr. Filner. Plaintiff’s supervisor s believed that he was unable to perform the essential functions of all union wareho use jobs because they required-3-

a worker to lift greater than fifty pounds. For th at reason, defendant terminated plaintiff. Thereafter, plaintiff filed a discrimin ation claim with the Colorado Civil Rights Commission. Defendant offered plainti ff a nonunion job as a meat scanner, which he accepted and continues to hold. On appeal, plaintiff argues that in deciding the su mmary judgment motion the district court did not view all of the facts in the light most favorable to him and that the district court wrongly concluded he di d not make a prima facie case under the ADA. We disagree.

We review the grant . . . of summary judgment de no vo, applying the same legal standard used by the distri ct court pursuant to Fed. R. Civ. P. 56(c). Summary judgment is appr opriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show th at there is no genuine issue as to any material fact and that the moving p arty is entitled to judgment as a matter of law. When applying this st andard, we examine the factual record and reasonable inference s therefrom in the light most favorable to the party opposing summ ary judgment. If there is no genuine issue of material fact in dispute, then we next determine if the substantive law was correctly appl ied by the district court. Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996) (quotation om itted). The ADA prohibits an employer from “discriminat[ing ] against a qualified individual with a disability because of the disabil ity” in regard to discharge. 42 U.S.C. § 12112(a). To establish a prima facie c ase of discrimination, a plaintiff must prove (1) he is a disabled person wi thin the meaning of the ADA; (2) he is qualified with or without reasonable acco mmodation, which he must1 Contrary to plaintiff’s suggestion in his opening b rief, the standards for a

prima facie case are established in the Tenth Circu it. -4- describe, to perform the essential functions of the job; and (3) the employer terminated him due to the disability. 1 See White v. York Int’l Corp. , 45 F.3d 357, 360-61 (10th Cir. 1995). “Disability” means “(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). In general, a person is “sub stantially limited” if he or she cannot perform a major life activity or is signific antly restricted in the performance of such activity. See 29 C.F.R. § 1630.2(j)(1). Working, as plaintiff alleges, is a major life activity. See id. § 1630.2(i). An individual’s ability to perform the major life activity of working is subst antially limited if he or she is significantly restricted in his or her ability to “ perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.” Id. § 1630.2(j)(3)(i). Inability to perform one particular job is not a substantial lim itation of the major life activity of working. See id. Courts may consider the following factors in dete rmining whether an individual is substantially limited in the major life activity of working:-5- (A) The geographical area to which the individual h as reasonable access; (B) The job from which the individual has been disq ualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, w ithin that geographical area, from which the individual is als o disqualified because of the impairment (class of jobs); and/or (C) The job from which the individual has been disq ualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or ab ilities, within that geographical area, from which the individual is als o disqualified because of the impairment (broad range of jobs in v arious classes). Id. § 1630.2(j)(3)(ii). Neither party disputes that plaintiff’s lifting res trictions are an impairment. The issue is whether the restrictions substantiallylimit his ability to work. Plaintiff argues, based on his vocational expert’s opinion, that he is precluded from performing the class of jobs requiring greaterthan medium work and he is therefore disabled under the ADA. The district cou rt rejected plaintiff’s vocational expert’s opinion, that plaintiff is restricted from performing a class of jobs exceeding the medium work category, as conclus ory and unsupported by any evidence of plaintiff’s vocational training, the ge ographical area to which he has access, or the number and types of jobs demanding s imilar training from which he would be disqualified. The district court set forth the broad range of jobs in various classes that plaintiff previously had held, and at no time did plaintiff indicate that any of those jobs conflicted with his lifting restrictions. Moreover, the district court determined that plaintiff’s inab ility to perform a union-6-

warehouse job is insufficient to establish he is un able to perform either a class or broad range of jobs. The district court concluded that plaintiff’s lifting restriction alone did not prove he had a substantial limitationof the major life activity of working and he is not disabled. We agree with the district court’s conclusions. “‘ An impairment that disqualifies a person from only a narrow range of j obs is not considered a substantially limiting one.’” Wooten v. Farmland F oods , 58 F.3d 382, 386 (8th Cir. 1995) (holding that impairment preventing plai ntiff from performing narrow range of meat packing jobs not considered substanti ally limiting) (quoting Heilweil v. Mount Sinai Hosp. , 32 F.3d 718, 723 (2d Cir. 1994)). Plaintiff’s lifting restriction, along with the CBA seniority rules, prevent him from performing only a narrow range of union warehouse j obs at defendant, not a class of jobs or broad range of jobs in various classes. Thus, he does not have an impairment substantially limiting the major life ac tivity of working. See Dutcher v. Ingalls Shipbuilding , 53 F.3d 723, 727 (5th Cir. 1995) (holding inabili ty to perform one aspect of job while retaining ability t o work in general is not substantial limitation on major life activity of wo rking); cf. Williams v. Channel Master Satellite Sys., Inc. , 101 F.3d 346, 349 (4th Cir. 1996) (holding as matter of law that twenty-five pound lifting restriction d id not constitute significant restriction on ability to work), petition for cert. filed , 65 U.S.L.W. 3675 (U.S.2 Although the interpretative guidance is not control ling, we may resort to it

for guidance. See Gile v. United Airlines, Inc. , 95 F.3d 492, 497 (7th Cir. 1996). -7- Mar. 24, 1997) (No. 96-1521); Aucutt v. Six Flags O ver Mid-America, Inc. , 85 F.3d 1311, 1319 (8th Cir. 1996) (holding twenty- five pound lifting restriction not significant restriction on working). But cf. 29 C.F.R. pt. 1630, app. § 1630.2(j) (giving example of individual with backinjury who is prevented from performing heavy lifting and is impaired in major l ife activity of working because impairment eliminates ability to perform one class of jobs, even if individual can perform jobs in another class); 2Cochrum v. Old Ben Coal Co. , 102 F.3d 908, 911 (7th Cir. 1996) (holding physical restrictions of n o overhead work, heavy lifting, or pulling and pushing might apply to broad range o f jobs and are more than job specific and reasonable jury could conclude impairm ent substantially limited ability to work). Even if he was not actually disabled, plaintiff believes that he was regarded as disabled because of defendant’s adv erse employment decisions and because his supervisors believed that he could not perform any union jobs due to his lifting restriction. An individual is “regarded as” having an impairment that substantially limits a major life activity if the individual is treated as if he had such an impairment, whether he does or not. Se e 29 C.F.R. § 1630.2(l); see also Bridges v. City of Bossier , 92 F.3d 329, 332 (5th Cir. 1996), cert. denied , 117 S. Ct. 770 (1997). The focus is on the effect the impairment has on the-8-

attitudes of others. See Gordon v. E.L. Hamm & Assocs., Inc. , 100 F.3d 907, 913 (11th Cir. 1996); Kelly v. Drexel Univ. , 94 F.3d 102, 108-09 (3d Cir. 1996);
Wooten , 58 F.3d at 385. Here, as the district court concluded, there is no evidence that defendant regarded plaintiff as unable to perform a class of jobs or a range of jobs in various classes other than as precluded by the CBA. In this case, defendant’s treatment of plaintiff as unable to perform the job s covered by the CBA is not the substantial equivalent as treatment of plaintiff as if he had an impairment that substantially limits a major life activity. Defend ant’s consideration of plaintiff’s lifting restrictions did not cause him to be regard ed as disabled under the ADA, especially since defendant offered plaintiff a nonu nion warehouse job he was capable of performing. See Gordon , 100 F.3d at 913 (determining significant impairment is one that is viewed by employer as gen erally foreclosing type of employment involved, not just narrow range of job t asks); Kelly , 94 F.3d at 109 (deciding mere fact employer was aware of employee’ s impairment insufficient to demonstrate employer regarded employee as disabled or that perception caused adverse employment action); cf. Chandler v. City of Dallas , 2 F.3d 1385, 1393 (5th Cir. 1993) (holding under Rehabilitation Act, employer’s belief employee is unable to perform task does not establish per se th at employer regards employee as having substantial limitation on ability to work ). Thus, plaintiff failed to bring-9-

forth any evidence indicating defendant treated himor perceived him as having a substantial limiting impairment. See Aucutt , 85 F.3d at 1320. Because plaintiff did not direct this court to any facts establishing a genuine issue for trial, we conclude the district c ourt properly determined he was not disabled within the meaning of the ADA and prop erly granted summary judgment in defendant’s favor. Because plaintiff d id not meet the disability element of the prima facie discrimination case, we need not address whether the district court correctly determined plaintiff is no t a qualified person. See White , 45 F.3d at 363. Plaintiff argues the district court improperly deni ed his motion to file a supplemental response to defendant’s motion for sum mary judgment. He sought to file a response after taking Dr. Ladwig’s deposi tion. Because, according to plaintiff, the district court relied on Dr. Ladwig’ s opinions and his opinions were actually more favorable to plaintiff, plaintiff bel ieves he should have been permitted to file a supplemental response incorporating those opinions. The district court denied the motion for the reasons th at ample time had been allowed for discovery and briefing of dispositive motions, plaintiff failed to state good cause for extending any deadline previously set by the court, and supplementation would only lead to confusion concerning the dispute d facts in the case. We review the district court’s denial of the motion fo r an abuse of discretion. See-10-

GWN Petroleum Corp. v. Ok-Tex Oil & Gas, Inc. , 998 F.2d 853, 858 (10th Cir. 1993) (stating rulings regarding amendment of plead ings are reviewable for abuse of discretion). Defendant filed its motion for summary judgment on December 28, 1995, the deadline for filing dispositive motions. The d istrict court originally had set December 18, 1995, as the deadline for discovery. Later, however, it extended the deadline for discovery to January 31, 1996, andextended the time for plaintiff to respond to the motion for summary judgment until February 9, 1996, and, later, until February 20, 1996. Dr. Ladwig failed to appe ar for his deposition scheduled for January 31, 1996, due to no fault of plaintiff. Plaintiff rescheduled the deposition for February 20, 1996, the day he was re quired to file his response to the motion for summary judgment. On February 20, h e filed his response, along with a motion to supplement the response with respe ct to Dr. Ladwig’s opinions. We agree with the district court’s conclusion that it provided ample time for discovery and briefing of dispositive motions. Also, plaintiff failed to show that the district court’s denial of the motion to s upplement resulted in actual and substantial prejudice. Cf. Searls v. Glasser , 64 F.3d 1061, 1068 (7th Cir. 1995) (denial of discovery). Nothing indicates the deposi tion testimony raised any issues of material fact. Accordingly, we conclude the dis trict court did not abuse its-11-

discretion in denying plaintiff’s motion to supplem ent his response to the motion for summary judgment. The judgment of the United States District Court fo r the District of Colorado is AFFIRMED.

Entered for the Court

Michael R. Murphy Circuit Judge