                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 7 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    LARRY L. REBARCHEK,

                Plaintiff-Appellant,

    v.                                                   No. 99-3111
                                                    (D.C. No. 97-CV-1282)
    FARMERS COOPERATIVE                                    (D. Kan.)
    ELEVATOR AND MERCANTILE
    ASSOCIATION, a Kansas
    corporation,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before BALDOCK , HENRY , and MURPHY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

       Plaintiff appeals the district court’s grant of summary judgment to

defendant on plaintiff’s claim that he was discharged from his employment

because of his back condition, in violation of the Americans with Disabilities Act

(ADA), 42 U.S.C. §§ 12101-12213, and in violation of the Kansas Act Against

Discrimination (KAAD), Kan. Stat. Ann. §§ 44-1001 through 44-1013. “We

review de novo the district court’s grant of summary judgment, applying the same

standard as did the district court.”     MacDonald v. Delta Air Lines, Inc.     , 94 F.3d

1437, 1440 (10th Cir. 1996). Summary judgment is proper if no genuine issues of

material fact exist and the moving party is entitled to judgment as a matter of law.

See Fed. R. Civ. P. 56(c) .

       [W]here the nonmoving party will bear the burden of proof at trial on
       a dispositive issue that party must go beyond the pleadings and
       designate specific facts so as to make a showing sufficient to
       establish the existence of an element essential to that party’s case to
       survive summary judgment.

Sorensen v. University of Utah Hosp.       , 194 F.3d 1084, 1086 (10th Cir. 1999)

(alteration in original) (quotations omitted).

       The ADA prohibits employers from discriminating against qualified

individuals on the basis of their disabilities.         See 42 U.S.C. § 12112(a).

       [T]o qualify for relief under the ADA, a plaintiff must establish
       (1) that he is a disabled person within the meaning of the ADA;

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      (2) that he is qualified, that is, with or without reasonable
      accommodation (which he must describe), he is able to perform the
      essential functions of the job; and (3) that the employer terminated
      him because of his disability.

White v. York Int’l Corp. , 45 F.3d 357, 360-61 (10th Cir. 1995). The district

court concluded that plaintiff failed to establish that he was disabled within the

meaning of the ADA. The court further concluded that because plaintiff’s claim

under the KAAD was virtually identical to his ADA claim, and because the two

statutory schemes are analyzed in the same manner, plaintiff’s KAAD claim also

failed. Plaintiff concedes on appeal that his KAAD claim must fail if his ADA

claim fails, but he argues that the district court erred in concluding that he did not

establish that he is disabled within the meaning of the ADA.

      The ADA defines a “disability” as “(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). Although the ADA does not define the term

“substantially limits,” the regulations implementing the ADA define the term as

follows:

             (i) Unable to perform a major life activity that the average
      person in the general population can perform; or
             (ii) Significantly restricted as to the condition, manner or
      duration under which an individual can perform a particular major
      life activity as compared to the condition, manner, or duration under
      which the average person in the general population can perform that
      same major life activity.

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29 C.F.R. § 1630.2(j)(1). “When the major life activity under consideration is

that of working, the statutory phrase ‘substantially limits’ requires, at a minimum,

that plaintiffs allege they are unable to work in a broad class of jobs.”        Sutton v.

United Air Lines, Inc. , 119 S. Ct. 2139, 2151 (1999). Likewise, the regulations

provide that when the major life activity at issue is that of working,

       [t]he term substantially limits means significantly restricted in the
       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. The inability to perform a single,
       particular job does not constitute a substantial limitation in the major
       life activity of working.

29 C.F.R. § 1630.2(j)(3)(i).

       Plaintiff contends that he is disabled because he has an impairment that

substantially limits one or more major life activities, he has a record of such an

impairment, and he was regarded by his employer as having such an impairment.

“[T]o state a claim under the ADA, a plaintiff must articulate with precision the

impairment alleged and the major life activity affected by that impairment.”

Poindexter v. Atchison, Topeka & Santa Fe Ry.           , 168 F.3d 1228, 1232 (10th Cir.

1999). In assessing a plaintiff’s ADA claim, a court should “analyze only the

major life activity asserted by the plaintiff.”       Id. at 1231. In the district court,

plaintiff alleged that his impairment was a back condition and that it substantially

limited his abilities to walk, sit, stand, lift, and work.     See Appellant’s App. at

107.

                                                -4-
      The evidence showed that plaintiff injured his back in 1994 and underwent

back surgery on March 24, 1995. Plaintiff was off work from the date of the

surgery until April 17, 1995, when his doctor released him to work with the

following restrictions: no lifting of more than forty pounds, no bending or

twisting of the back more than halfway, no climbing ladders, and no sitting,

standing, or walking more than two hours at a time. Plaintiff’s doctor stated that

he hoped these restrictions would be only temporary. The restrictions were still in

place when plaintiff was discharged from his employment one week later, on

April 24, 1995.

      The district court concluded both that plaintiff’s back condition was a

physical impairment and that it restricted some of plaintiff’s activities. The court

further concluded, however, that plaintiff produced no evidence to establish that

his impairment substantially limited any major life activity. Specifically, the

court found that plaintiff presented no evidence showing that the restrictions on

his lifting, walking, sitting, and standing abilities were significant when compared

to the average person’s abilities. The court also found that plaintiff presented no

evidence showing that his ability to work was significantly limited, i.e., he

presented no evidence showing he was restricted in his ability to perform either a

class of jobs or a broad range of jobs within a class. In addition, the district court

determined that there was no evidence the restrictions placed on plaintiff


                                          -5-
following his back surgery were expected to be of significant duration.    See, e.g. ,

29 C.F.R. § 1630.2(j)(2) (providing that the duration or expected duration of the

impairment and its impact are among the factors to consider in determining

whether an impairment substantially limits a major life activity). Therefore, the

court concluded that plaintiff had not produced enough evidence to withstand

summary judgment on the issue of whether he actually had an impairment that

substantially limited one or more major life activities. The court also concluded

that plaintiff made no showing either that he had a record of an impairment that

substantially limited a major life activity, or that his employer regarded him as

having such an impairment.

      We have carefully reviewed the parties’ briefs, the record on appeal, and

the pertinent law, and we find no reversible error in the district court’s ruling.

Therefore, we AFFIRM the judgment of the district court for substantially the

reasons set forth in its Memorandum and Order of March 8, 1999.



                                                       Entered for the Court



                                                       Bobby R. Baldock
                                                       Circuit Judge




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