                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           DEC 5 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    ROBERT COLLINS,

                Plaintiff-Appellant,

    v.                                                   No. 03-3044
                                                  (D.C. No. 01-CV-1415-JTM)
    RAYTHEON AIRCRAFT                                      (D. Kan.)
    COMPANY,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before BARRETT , Senior Circuit Judge,       BALDOCK , Circuit Judge, and
BRORBY , Senior Circuit Judge.



         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      This order and judgment is not binding precedent, except under the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. 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.
      Plaintiff Robert Collins appeals the district court’s dismissal of his

complaint against Raytheon Aircraft Company alleging discrimination under the

Americans with Disabilities Act (ADA) based on Raytheon’s rescission of its

conditional offer of employment. In granting Raytheon’s motion for summary

judgment, the district court held that: (1) Collins failed to establish a prima facie

case under the ADA because he could not show either that he was regarded as

disabled or had a record of a disability; (2) Collins was not a qualified individual

with a disability because he did not establish that he could have performed the

essential functions of his job with or without reasonable accommodation;

(3) Raytheon was entitled to the affirmative defense set forth in 42 U.S.C.

§ 12112(b)(6) since its actions reflect setting a standard designed to avoid

a direct threat to employee health or safety; (4) there was no basis for the

argument that it would have been a futile gesture for Collins to have applied for

other positions at Raytheon. We review the district court’s grant of summary

judgment de novo, applying the same standard as the district court.        See Simms v.

Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs.         , 165 F.3d 1321,

1326 (10th Cir. 1999).

      On appeal, Collins argues that the district court erred in granting summary

judgment because he placed sufficient evidence before the court to create

a question of fact for the jury to decide if he was regarded as disabled, had


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a record of a disability, was a threat to himself, and was a qualified individual

with a disability. Collins contends also that he was entitled to assert the futile

gesture doctrine. After careful review of the record on appeal and the applicable

legal standards, we conclude that the district court correctly decided this case.

Therefore, we AFFIRM the district court’s judgment for the reasons stated in its

Memorandum and Order dated January 16, 2003.


                                                     Entered for the Court



                                                     Wade Brorby
                                                     Senior Circuit Judge




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