*The Honorable John R. Gibson, Circuit Judge, United States Court of Appeals for

the Eighth Circuit, sitting by designation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 24 2001 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

________________________ JOHN MATHEWS,

Plaintiff - Appellant,

v. THE DENVER POST, a Colorado Corporation,

Defendant - Appellee. No. 99-1329

_______________________________________ Appeal from the United States District Court

for the District of Colorado (D.C. No. 98-M-865)

______________________________________ Barry K. Arrington, Arrington & Rouse, P.C., Denver , Colorado, for the appellant. Mary H. Stuart (Roxane J. Perruso with her on the b rief), Holme, Roberts & Owen, LLP, Denver, Colorado, for the appellee.

_____________________________________ Before SEYMOUR, JOHN R. GIBSON , * and BRISCOE , Circuit Judges.

_____________________________________ JOHN R. GIBSON , Circuit Judge.

_____________________________________-2-

John Mathews brought this suit against his employer , the Denver Post, contending that the Post laid him off in violation of the Americans with Disabilities Act, 42 U.S.C. § 12112 (1994), from No vember 1994 to May 1996. The district court granted summary judgment to the Post, holding that Mathews had not shown he was a disabled person within the m eaning of the Act, nor had he shown he was qualified to do his job on the dates i n question. We affirm. Mathews began work at the Post in 1983, was promote d to journey-level mailer in 1988, and is currently employed there. M athews suffers from epilepsy, including grand mal seizures. He suffered a grand mal seizure on September 6, 1994 that required two days' hospitalization. His doctor told him not to return to work for one month. The Post received the followin g letter from Mathews's doctor, Jack Sylman, M.D., dated October 8, 1994: In response to your letter dated October 3, 1994, M r. John Mathews did have an epileptic seizure and I would not be comfortable with him either driving, or being near or operating heavy equipmentfor at least three months. This is a fairly standard guideline genera lly accepted within the community. As time passed, Dr. Sylman continued to reiterate t he same advice. In his letter of November 14, 1994, he stated: Mr. John Mathews has epilepsy and has had isolated grand mal seizures, some of which have occurred at work. Unf ortunately, there is no cure for this condition though reasonable con trol has been achieved with Dilantin. However, I cannot assure h im that he might not have isolated sporadic seizures without warning . Ideally, it-3-

would be best if he were not to drive or work aroun d heavy machinery. Mathews sought to return to work, but proposed thatthe Post accommodate him by letting him do the part of the journey-level mai ler job that did not involve working with machines. The job description for journey-level mailer listed five essential functions of the job, three of which were: "Stand at insert machines, lifting inserts from pallets and feeding insert machines at the appropri ate stations"; "Lift bundles, stack on pallets and push/pull cart or operate powe r dolly to insert machine or storage areas"; and "Operate power dolly to move dated materials for proper insert run." The Post terminated Mathews because his medical re strictions prevented him from performing the essential functions of his job. At the same time, the Post continued to assist Mathews in looking for a p osition at the Post that he could perform with his medical restrictions. Mathews continued to inquire about coming back to w ork. He met with the Post's Employee Relations Manager in April 1995, an d she promptly wrote his doctor asking whether Mathews could perform the jou rney-level mailer job safely. She enclosed a copy of the job description. On Apr il 12, 1995, Dr. Sylman replied to the Post:1 At oral argument in this appeal Mathews's counsel clarified that Mathews only seeks

to recover for the November 1994 to May 1996 period. -4- John could return to work in a job in which he woul d not be at risk of injuring himself. Restrictions would include frequent driving or work ing around heavy, dangerous machinery, or in elevated position s where he might sustain a fall. If possible, he should not work with heavy machinery. Specifically working with a power dolly and an insert machine may pose problems.
On May 9, 1996, Mathews's doctor lifted his medical restrictions, stating that he "should be able to drive or work with machi nery." The Post then hired Mathews back at his old job. Mathews sued the Post, claiming that the Post disch arged him in violation of the ADA, failed to provide a reasonable accommod ation for his disability, and fired him in retaliation for filing a complaint wit h the EEOC. 1 The Post moved for summary judgment, which the dist rict court granted. First, the court held that Mathews had not shown th at he was disabled. Mathews argued that his epilepsy substantially limited him in the major life activity of working. Mathews was only able to show that his ep ilepsy interfered with his ability to do particular jobs, whereas he was requi red to show a limitation on his ability to do a class of jobs or a broad range of j obs in order to establish substantial limitation on his ability to work. Sec ond, the court held that Mathews-5-

had not shown he was a qualified individual, becaus e he could not perform the journey-level mailer's job while he was under docto r's orders not to work with or around dangerous machinery. The court held that Mathews had not made a sufficiently specific request for accommodation by assignment to another position, and that the evidence to support Mathews' s retaliation claim was "simply not here." On appeal Mathews argues that the district court er red in holding that he was not disabled and that he was not qualified to d o his job. He does not pursue the retaliation claim. Because we conclude that th e district court ruled correctly on the qualification issue, we need not deal with t he question of whether Mathews was disabled. We review the district court's grant of summary jud gment de novo. Frazier v. Simmons , 254 F.3d 1247, 1252 (10th Cir. 2001). To sustain a claim under the ADA, Mathews must show that he (1) was disabled; (2) was qualified, that is, could perform the essential functions of the job in question, with or without accommodation; and (3) suffered adverse employment action because of the disability. Frazi er , 254 F.3d at 1256. See generally42 U.S.C. § 12112(a). We break down the question o f whether a plaintiff is qualified into two steps: First, we must determine whether the individual cou ld perform the essential functions of the job, i.e., functions that bear more than a-6-

marginal relationship to the job at issue. Second, if (but only if) we conclude that the individual is not able to perform the essential functions of the job, we must determine whether any reasonable accommodation by the employer would enable him to p erform those functions. Martin v. Kansas , 190 F.3d 1120, 1129-30 (10th Cir. 1999) (quoting Milton v. Scrivner, Inc. , 53 F.3d 1118, 1123 (10th Cir. 1995)), overruled o n other grounds , Bd. of Tr. of the Univ. of Ala. v. Garrett , 121 S. Ct. 955, 967-68 (2001). The essential functions of a job are "the fundament al job duties of the employment position the individual with a disability holds or desires." 29 C.F.R. § 1630.2(n)(1) (2001). One way to establish that afunction is essential is to show that the position exists to perform that function. 29 C.F.R. § 1630.2(n)(2)(i) (2001). Evidence bearing on the essential function question includes: the employer's judgment as to which functions are essen tial; written job descriptions in use by the employer; the amount of time spent on the job performing the function; and the consequences of not requiring the incumbent to perform the function. Frazier , 254 F.3d at 1258 (quoting from more extensive lis t at 29 C.F.R. § 1630.2(n)(3)). The record in this case leaves no doubt that operat ing the insert machine and power dolly were essential functions of Mathews 's job. The Post's job description for journey-level mailer listed five es sential functions, two of which involved using or being around the insert machine a nd two of which involved-7-

using the power dolly. Mathews admitted in his dep osition that the job description for journey-level mailer was an accurat e description of the job. He described the job himself: "Our job is--a mailer jo b is inserting pre-prints using the machine and hand inserts, preparing the newspap er for UPS shipping. We catch the paper from the press line." He also ment ioned using the power dolly. The Post's personnel representative said, "There wa s no job in the mailroom that was not around heavy machinery." Mathews admitted that he could not use the insert m achine. When asked whether he could go back and do the same job he had done in August 1994, he said: "I have to answer that a yes and no because he write down not working on the dangerous machinery. So working on the machine is a part of the job, like I described to you what the jobs we do. So part of t he job I could do, part of the job I may not." When asked, "Did you agree with no t working around heavy machinery?" Mathews answered: "It is--yes, I agree with that." Mathews now argues that he was not prohibited from using the power dolly, even though his doctor had specifically mentioned i t as posing a danger. He says that his doctor said the power dolly "may pose prob lems" and by using the word "may" the doctor "invited the Denver Post and Mr. M athews to use their common sense judgment about the potential consequences if a person using the dolly were to have a seizure." We cannot agree that it would be using common sense to-8-

disregard the doctor's specific warning that allowi ng a person subject to grand mal seizures to work with a particular machine "may pose problems." Similarly, Mathews contends that his doctor's advic e changed at the time of the November 14, 1994 letter, making it permissible for Mathews to work around the machines. A fair reading of the November 14, 1 994 letter and the April 12, 1995 letter is that Mathews was still in danger of falling into the machines. The Post tried to clarify the doctor's opinion by sendi ng a job description and asking specific questions about whether Mathews could safe ly perform the job. The doctor then identified the insert machine and the p ower dolly as posing problems. Furthermore, Mathews himself wrote the Post's Emplo yee Relations Manager as late as November 29, 1995, stating: "As you are pr obably aware, my doctor does not want me to drive or work around moving machinery." The Post interacted with Mathews in an attempt to find out what he coul d do, and both Mathews and his doctor led the Post to believe that it was unsa fe for Mathews to operate the machinery. When the doctor's advice changed, the P ost hired Mathews back. Having determined that Mathews was unable to perfor m essential functions of the journey-level mailer job, we next determine whether he could have performed them with accommodation. Mathews argues that the Post should have accommodated his disability by allowing him to use his seniority to bid for shifts1 Mathews argues that the Post failed to participate in the interactive process of

accommodating his disability, but he complains only that the Post should have modified the journey-level mailer job, not that there was some other existing position to which he should have been reassigned. -9- that would not be using the insert machine. 1 Mathews's union representative testified that some shifts in the mailroom might be primarily working on the press line, rather than the insert machine, and that Math ews had the seniority to bid for those shifts. However, the union representative te stified that the workers on those shifts might still be called on to use the in sert machine: "You're not going to be on the inserting machine, you're going to be over here working on the press lines, but that doesn't mean if you come in on a pr ess line, that you might not end on an inserting machine at some point during the ni ght." Mathews himself testified that even on a press line shift, he would have to use the insert machine when necessary to relieve others for lunch. Mathew s also admitted that he was obliged to work overtime when asked and said that " [m]ost of the overtime is on the insert machine." Mathews also said that the pr ess line shifts still involved using the power dolly. The idea of accommodation is to enable an employee to perform the essential functions of his job; an employer is not required to accommodate a disabled worker by modifying or eliminating an ess ential function of the job. Frazier , 254 F.3d at 1261; Martin , 190 F.3d at 1133; 29 C.F.R. pt. 1630 app. at §-10-

1630.2(o) (2001). Mathews and his union representative admitted that even journey-level mailers working on a press line shiftwere required to use the insert machine when it was necessary to relieve others and when they were required to work overtime. Additionally, the press line shifts were required to use the power dolly. An employer may require workers in a job cl assification to be able to rotate through a variety of functions as needed. F razier , 254 F.3d at 1258-60; Martin , 190 F.3d at 1131-32; Anderson v. Coors Brewing Co

. , 181 F.3d 1171, 1176-77 (10th Cir. 1999). Mathews's proposal that he be permitted to perform only a portion of the essential duties of his posit ion is "tantamount to asking [the Post] to provide a permanent light duty post." Martin , 190 F.3d at 1133. Accommodation does not require the employer to create a new job. Smith v. Midland Brake, Inc. , 180 F.3d 1154, 1174 (10th Cir. 1999) (en banc); A nderson , 181 F.3d at 1177. Because Mathews has not proved that he could perfor m the essential functions of his job during the time in question, h e has not established that he was qualified for the job. We therefore must affirm th e district court's entry of summary judgment for the Post.