                       UNITED STATES COURT OF APPEALS
Filed 10/11/96
                                    TENTH CIRCUIT



 RICHARD L. GILBERT,

        Plaintiff-Appellant,
 v.                                                           No. 95-1060
                                                          (D.C. No. 93-M-1800)
 STORAGE TECHNOLOGY                                             (D. Colo.)
 CORPORATION, a Delaware
 corporation,

        Defendant-Appellee.


                               ORDER AND JUDGMENT*


Before SEYMOUR, Chief Judge, HOLLOWAY and BRISCOE, Circuit Judges.



       Plaintiff-appellant Richard L. Gilbert appeals from the district court’s final judgment

entered against him in this employment discrimination case. The district court had

jurisdiction under 28 U.S.C. § 1331 because plaintiff asserted claims based on two federal

statutes. We have appellate jurisdiction under 28 U.S.C. § 1291.

       Plaintiff filed this suit against defendant Storage Technology alleging he was

discharged from his employment in violation of the Americans with Disabilities Act of 1990



        *This order and judgment is not binding precedent except under the doctrines of
the law of the case, res judicata, and collateral estoppel. This 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.
(ADA), 42 U.S.C. §§ 12101-12213, and the Age Discrimination in Employment Act

(ADEA), 29 U.S.C. §§ 621- 634. The case went to jury trial. At the conclusion of the

plaintiff’s case, the district court granted judgment as a matter of law for the defendant on

the ADA claim under Fed. R. Civ P. 50(a), finding that plaintiff had failed to show that he

was a handicapped individual within the meaning of the ADA. The jury returned a verdict

for the defendant on the ADEA claim.

          Plaintiff appeals, contending that the district judge erred in granting judgment as a

matter of law on the ADA claim, having erroneously found that he failed to show he was a

handicapped individual under the ADA. He also claims error in the trial judge’s erroneous

denial of a challenge for cause to a prospective juror which resulted in the deprivation of his

statutory right to exercise of his peremptory challenges and in the district court's abuse of

discretion in excluding several exhibits offered by plaintiff at trial. We find no error and

affirm.

                                                I

          Before setting out the facts necessary to discussion of the issues on appeal, we note

that we must apply a different standard in reviewing the facts in our analysis of the ADA

issues from that which we must employ in our consideration of the ADEA issues. In

reviewing the grant of defendant’s motion for judgment as a matter of law on the ADA

claim, we must view the facts in the light most favorable to plaintiff, as we further explain

infra. In reviewing the judgment in favor of defendant on the ADEA claim based on the


                                                2
jury’s verdict, we of course view the facts in the light most favorable to defendant. As a

practical matter, these disparate standards of review cause no difficulty under the

circumstances, as only relatively few facts are in dispute, and we find that no material fact

relevant to the ADA claim is genuinely disputed.

       Plaintiff has a bachelor’s degree in mechanical engineering and had worked for IBM

for 31 years as an engineer and manager. He accepted employment as a managing engineer

with defendant in Colorado in July 1991. He was 53 at that time. He informed defendant

prior to accepting the job that he had suffered from asthma all his life. His asthma has been

diagnosed as “moderately severe,” indicating that he must take medication occasionally but

has no chronic pulmonary impairments and his condition is under control. II Tr. at 322-23.1

       Upon beginning his employment with defendant, plaintiff was assigned to defendant’s

headquarters in Louisville, Colorado. Shortly afterward, he was transferred to the company’s

facility in Longmont, Colorado. Plaintiff testified that his asthma began causing him severe

problems after he began working at Longmont. He was frequently absent as a result.

Plaintiff’s supervisor, Mr. Pyatt, considered his absenteeism to be excessive and first voiced

concern about the number of absences in either December 1991 or January 1992. II Tr. at

268. Plaintiff’s period of most frequent absences was during the first half of 1992. A


       1
         Our citations to the record will be, unless otherwise noted, to the three volumes of
the trial transcript to which plaintiff-appellant's brief refers and which have been filed with
this court as supplemental volumes of the record on appeal. They were not originally filed
as required by 10th Cir. R. 10.1.1. We ordered that the record be supplemented with copies
of the transcripts on file with the district court pursuant to Fed. R. App. P. 10(e).

                                              3
performance evaluation was completed in June 1992, after plaintiff had been with defendant

about eleven months. Plaintiff submitted his views to Mr. Pyatt as a part of the evaluation,

and plaintiff’s own input acknowledged that his attendance was a weakness. Id. at 273-74.

The evaluation completed by Pyatt reflected substantial concern with plaintiff’s absences.

Id. at 274-78.

       Although plaintiff’s attendance began to improve somewhat, Pyatt remained frustrated

with the situation. On March 1, 1993, Pyatt and Jimmy Hartsfield, a human resources

manager with defendant, informed plaintiff that he would no longer continue in his position

and that he had two options: He could either resign, in which case he would receive a

“severance package” and would also have the right to withdraw his resignation within 30

days, or he could accept a new position which would not have managerial responsibilities and

in which he would be subject to strict guidelines of a performance improvement plan (which

apparently meant that his attendance and performance would be monitored more closely than

usual, with his continued employment being dependent on satisfactory reviews). I Tr. at 230-

31, 238.

       Plaintiff accepted the first alternative but changed his mind. Near the end of the thirty

day revocation period he announced his desire to withdraw his resignation and accept the

second alternative. He was told that since his acceptance of the resignation option the

company had undergone a consolidation and reduction in force and that there was no opening

for him. Id. at 240. Plaintiff’s former job was given to a younger man. II Tr. at 261; III Tr.


                                               4
at 503. Plaintiff was told that he could remain on the payroll for another thirty days, during

which he would have an office and could search for other openings within the company to

which he could request a transfer, or could begin looking for work elsewhere. Plaintiff’s

efforts during this period were unsuccessful, and his employment ended on April 30, 1993.

After filing a complaint with the Equal Employment Opportunity Commission and receiving

a notice of his right to sue, plaintiff commenced this action.

       Plaintiff attributes his attendance problems to exacerbation of his asthma resulting

from the environment at the Longmont facility. Defendant contends that during his

employment, plaintiff never suggested that he might be able to avoid asthma attacks if

defendant provided some kind of accommodation, nor did he explain that his absenteeism

was a result of the combination of his asthma and the air quality in the facility. Plaintiff

contends that he discussed his problem and the fact that several other workers in the building

were having allergy problems with the company’s human resources manager, who referred

him to the environmental and ergonomics department, which assigned a temporary employee

to make inquiry into the complaints. Plaintiff also contends that he signed a medical release

at Pyatt’s request so that defendant could assess his condition, but defendant never attempted

to obtain his records, nor did defendant take any meaningful steps to determine the cause of

the problems plaintiff and others were experiencing.

                                              II

       We will first address the issue of whether the district court erred in concluding that


                                              5
plaintiff had failed to show that he was a “handicapped individual” as that term is used in the

ADA and thus erred in granting judgment as a matter of law for defendant on plaintiff’s

ADA claim. We review de novo a grant of judgment as a matter of law, viewing all evidence

in the light most favorable to the non-movant, and drawing all reasonable inferences in his

favor. Honce v. Vigil, 1 F.3d 1085, 1088 (10th Cir. 1993); Martin v. Unit Rig & Equipment

Co., 715 F.2d 1434, 1438 (10th Cir. 1983).

       The district court relied on the reasoning of Heilweil v. Mt. Sinai Hospital, 32 F.3d

718 (2d Cir. 1994), cert. denied, 115 S.Ct. 1095 (1995), in ruling that plaintiff could not

sustain his claim under the ADA as a matter of law, agreeing with defendant’s argument that

plaintiff had failed to show that he was a “qualified person with a disability” within the

meaning of the ADA. The relevant portion of the definition of a person with a disability has

two parts: that the plaintiff has a physical impairment and that the impairment substantially

limits one or more of his major life activities. 42 U.S.C. § 12102(2)(A). Plaintiff contends

that he is substantially limited in the major life activity of working. The ADA does not

define the term “substantially limited.” Therefore we turn to the regulations promulgated by

the Equal Employment Opportunity Commission. The regulations provide that:

              With respect to the major life activity of working --

               (I) The 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.


                                              6
29 C.F.R. Pt. 1630.2(j)(3) (emphasis added).

       Plaintiff’s evidence showed, at most, that something in the environment in the

Longmont facility caused him to suffer asthma attacks and made it impossible for him to

continue working there. On cross-examination, plaintiff testified that his asthma had never

before interfered to such an extent with his ability to work. While employed at IBM, he had

worked in several states, with some localities causing him more problems than others, but

none creating a serious interference with his ability to work. As the years passed, he

benefitted from treatment by doctors with more training in treating asthmatics, and so, until

going to work for defendant, he had been finding his asthma less of a problem than ever

before. Not only was he able to continue working as before, but he was able to enjoy more

vigorous recreational activities than before.

       Thus, we agree with the district court’s conclusion that plaintiff’s evidence did not

show that he was disabled with respect to a major life activity. As we held in Bolton v.

Scrivner Inc., 36 F.3d 939, 942 (10th Cir. 1994), cert. denied, 115 S.Ct. 1104 (1995), it is

insufficient that plaintiff may have had a substantial limitation on his ability to perform this

particular job. It is necessary to consider the “number and type of jobs from which the

impaired individual is disqualified . . . .” Welsh v. City of Tulsa, 977 F.2d 1415, 1419 (10th

Cir. 1992).2 Plaintiff clearly did not show a significant restriction in the ability to perform




       Welsh v. City of Tulsa was decided under the Rehabilitation Act, not the ADA, but
       2

the same definitions apply under the two statutes. Bolton, 36 F.3d at 942-43.

                                                7
“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.”      Bolton, (quoting 29 C.F.R. §

1630.2(j)(3)(I)). Indeed, plaintiff made no attempt whatsoever to establish that his asthma

interfered with his ability to work other than his experience at defendant’s Longmont facility.

Plaintiff’s asthma has not affected his ability to perform any of his previous jobs. Inability

to perform a particular job for a particular employer is not sufficient to establish a handicap;

the impairment must substantially limit employment generally. Bolton, 36 F.3d at 944

(affirming grant of summary judgment).

                                              III

       We next consider plaintiff’s contention that he was deprived of his statutory right to

peremptory challenges when the district judge erroneously overruled his challenge for cause

to prospective juror Strunk. We review the denial of a challenge for cause under the abuse

of discretion standard. Getter v. Wal-Mart Stores, Inc., 66 F.3d 1119, 1122 (10th Cir. 1995),

cert. denied, 116 S.Ct. 1017 (1996).

       Mr. Strunk revealed during voir dire examination that he owned stock in defendant

Storage Technology. Tr. at 63. Upon determining that Mr. Strunk primarily deferred to his

wife, who was a stock broker, in investment decisions in the stock market, and that he did

not know the extent of their ownership in Storage Technology, the trial judge overruled

plaintiff’s challenge for cause. Plaintiff’s counsel then used a peremptory challenge to

remove Mr. Strunk.


                                               8
       We will assume, without deciding, that the denial of plaintiff’s challenge was an abuse

of discretion.   See Getter, 66 F.3d at 1122 (financial interest resulting from wife's

employment and prospective juror's stock ownership is "precisely the type of relationship that

requires the district court to presume bias and dismiss the prospective juror for cause").

However, plaintiff is not entitled to relief on appeal in any event because he has not shown,

nor even contended, that the jury which was actually impaneled was not impartial. Getter,

66 F.3d at 1122-23. Cf. Ross v. Oklahoma, 487 U.S. 81, 86-88, 91 (1987). Thus, there is

no merit to plaintiff’s argument on this issue.

                                               IV

       Finally, we turn to plaintiff’s contention that the district court abused its discretion in

refusing to admit certain exhibits which he offered in evidence at trial.3 First, plaintiff

contends that the district judge erroneously refused to admit defendant’s affirmative action

plans setting forth its equal opportunity policies. Plaintiff argues generally that these exhibits

were admissible to show that the defendant and its managers were aware of, but failed to live

up to, their obligations under the ADA and the ADEA. The record reveals that defendant’s



       3
        We note that one of the three evidentiary issues raised by plaintiff is moot because
of our holding on the ADA issue. Plaintiff concedes that the exhibit which is the subject of
this contention related only to his ADA claim. The exhibit contained information relevant
to defendant’s financial condition, which plaintiff contends was relevant because he sought
punitive damages in his ADA claim. The trial judge apparently ruled the exhibit
inadmissible because the witness could not identify the document. In any event, we need not
reach this issue because we have held that the district judge properly granted judgment as a
matter of law for defendant on the ADA claim.

                                                9
witnesses never professed ignorance of the statutes and their requirements, not that ignorance

would have been a defense in any event. Consequently, we do not perceive that these

exhibits would, on this justification, have been relevant to any contested issue in the trial.

Fed. R. Evid. 401, 402.

       Plaintiff’s more specific argument for admission of these exhibits is focused entirely

on the statements made by the company with regard to its intent to accommodate any

“challenged individual.” Plaintiff asserts that the company went beyond the “lofty and

altruistic general pronouncements” of most affirmative action plans to make “bold

statements” indicating a very positive intention to make accommodations for employees’

physical limitations. Clearly, this contention bears only on the insufficient ADA claim.

Consequently, the error, if any, in denying admission of these exhibits could not have been

prejudicial.

       Plaintiff also contends that the district court erred in refusing to admit three other

exhibits, identified as plaintiff’s exhibits 48, 49, and 50, which plaintiff describes as “legal

publications outlining the coverage of the ADA and the employer’s legal obligations under

that statute.” These were copies of a newsletter, “Fair Employment Practices,” which is

published by the Bureau of National Affairs. Defendant’s human resources department

apparently circulated this publication to ensure that those employees who were dealing with

personnel issues were apprised of recent developments in employment law, including cases

arising under the ADA. Again, defendant did not deny that it was aware of its obligations


                                              10
under the law. Accordingly, these exhibits were not relevant to any of the factual disputes

to be decided by the jury, and their exclusion could not have been an abuse of discretion.

Moreover, plaintiff does not contend that these exhibits were relevant to the ADEA claim.

Therefore, even if there were error in the trial court’s rulings, plaintiff cannot show that he

was prejudiced, and any error would clearly have been harmless.




                                              11
                                     V

    We conclude that the judgment of the district court must be, and is hereby,

AFFIRMED.

                                          Entered for the Court

                                          William J. Holloway, Jr.
                                          Circuit Judge




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