                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        June 26, 2006
                           FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                        Clerk of Court

 R ALPH EN D LIC H,

              Plaintiff-Appellant,
                                                          No. 05-2215
 v.

 Y ELLO W C O RPO RA TIO N ,
 aka Yellow Transportation Inc.,

              Defendant-Appellee.



                                      OR DER


Before KELLY, BR ISC OE, and LUCERO, Circuit Judges.


      This matter is before the court on M r. Endlich’s petition for panel

rehearing. Upon consideration, the panel grants the petition for rehearing in part.

A copy of an amended decision is attached to this order, which reflects a change

to one sentence. The petition is granted as to that one change. In all other

respects, the petition for rehearing is denied.

                                             Entered for the Court
                                             ELISABETH A. SHUM AKER, Clerk


                                             By:

                                                  Deputy Clerk
                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                         UNITED STATES CO URT O F APPEALS
                                                                      June 26, 2006
                            FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                       Clerk of Court



    R ALPH EN D LIC H,

            Plaintiff-Appellant,

    v.                                                   No. 05-2215
                                               (D.C. No. CIV-04-265-LCS-KBM )
    Y ELLO W C O RPO RA TIO N ,                            (D . N.M .)
    aka Yellow Transportation Inc.,

            Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before KELLY, BR ISC OE, and LUCERO, Circuit Judges.


         Ralph Endlich appeals the dismissal of his suit on summary judgment

against his former employer, Yellow Corporation, aka Yellow Transportation Inc.

(“Yellow”), for alleged violations of the Americans with Disabilities Act of 1990




*
  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.

                                         -2-
(“ADA”), 42 U.S.C. § 12101-12213. W e exercise jurisdiction pursuant to

28 U.S.C. § 1291 and A FFIR M .

      W hen Endlich applied for a linehaul driver position with Yellow, he stated

that he had not been involved in any work-related incidents causing damage to

facilities, equipment, property, or other persons in the ten years prior to the

application date. This was incorrect. Endlich had been injured in a truck

accident two years before his application while working for his previous

employer, Consolidated Freightways. After the accident, he underw ent surgery

for injuries he sustained to his shoulder, and he sought and received workers’

compensation benefits from the Texas W orkers’ Compensation Commission

(“TW CC”).

      Yellow hired Endlich, and he underwent a pre-employment physical

examination. He also participated in a physical performance test, which he

passed. Endlich claims that he informed Yellow’s examining physician about his

shoulder injury during his physical and that the physician indicated that the injury

w ould not prohibit Endlich from performing services for Yellow.

      Soon after Endlich started, Yellow’s labor and employment counsel, M att

Brazeal, received a letter from Todd Richards, an attorney representing Endlich’s

previous employer, that requested copies of Endlich’s application documents,

particularly those dealing with any physical performance tests. Richards’ letter

indicated that Endlich had filed a workers’ compensation claim as a result of his

                                         -3-
shoulder injury. After receiving the letter, Brazeal contacted Richards to inform

him that he would need to send a subpoena before Brazeal could produce the

requested documents. During the conversation, Richards told Brazeal that

Endlich had been involved in a rollover accident.

      Brazeal later determined that the information on Endlich’s application for

employment was false because Endlich had failed to disclose the rollover

accident. He further determined that Endlich had made false representations to

the TW CC because he had passed his physical performance test and had been

working for Yellow with no apparent difficulty. Yellow contends that Brazeal

communicated these concerns to M att Oglesby, Yellow’s labor manager, who in

turn contacted Dennis Deck, Endlich’s linehaul manager, to inform him that

Endlich had an “unfavorable background.” D eck then terminated Endlich’s

employment because of Endlich’s job performance problems and the information

he had received from Oglesby. 1

1
       This case is thus unlike M arx v. Schnuck M arkets, Inc., 76 F.3d 324
(10th Cir. 1996), in which the plaintiff’s wife, an employee of defendant Schnuck
M arkets, attempted to circumvent Schnuck’s informal policy of not hiring the
spouse of a current employee by pretending that she had never met her husband at
the time he applied for a job. From its humble beginnings, this charade
progressed from a feigned courtship between two employees to a bachelor party
arranged ostensibly to celebrate the poseur-husband’s “last hours of freedom.”
Shortly thereafter, plaintiff’s w ife, the tem porarily then not-so tem porarily
M rs. M arx, notified Schnuck that she believed it was failing to pay overtime in
accordance with federal law . Schnuck promptly undertook an investigation into
its overtime policies, and then two weeks later fired M rs. M arx citing
falsifications on her application for employment. M r. M arx responded by filing a
                                                                          (continued...)

                                          -4-
      Endlich sued Yellow under the ADA and wrongful discharge under state

law claiming that he was terminated because Yellow regarded him as disabled and

that Yellow asked impermissible questions about his medical history. Yellow

moved for summary judgment on the ADA claim arguing that Endlich was

terminated for making false statements on his employment application and for

unsatisfactory job performance. The district court granted summary judgment in

favor of Yellow on Endlich’s ADA claims, but denied summary judgment on the

state law claim. The state law claim was tried to a jury and a verdict was entered

in Yellow’s favor. Endlich now appeals the district court’s grant of summary

judgment in favor of Yellow on his ADA claims. He does not appeal from the

jury verdict.

      W e review de novo the district court’s grant of summary judgment,

applying the same standard as the district court. Simms v. Okla. ex rel. Dep’t of

M ental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999).

1
 (...continued)
class action Age Discrimination in Employment and Fair Labor Standards Act
suit. During the course of depositions taken to defend this litigation, Schnuck
learned of plaintiff’s misrepresentations concerning his marital status, and
subjected him to examination concerning his previous fabrications. The district
court granted summary judgment on both claims. W e affirmed the dismissal of
the AD EA claim, but reversed the district court’s dismissal of the FSLA
retaliation claim concluding, inter alia, that Schnuck could not rebut M arx’s
showing of pretext by invoking the “unrelated wrongdoing” of his
misrepresentations concerning his marital status. Id. at 329. The timing is thus
crucially different from this case in which Endlich misrepresented his accident
history on his employment application, and Yellow learned of this
misrepresentation before termination.

                                        -5-
Summary judgment is appropriate “if the pleadings, depositions, answ ers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law .” Fed. R. Civ. P. 56(c).

      The ADA provides that no covered employer “shall discriminate against a

qualified individual with a disability because of the disability of such individual

in regard to . . . the hiring, advancement, or discharge of employees.” 42 U.S.C.

§ 12112(a). To establish a prima facie case under the A DA, a plaintiff must

show: (1) he has a disability; (2) he is a qualified individual who, with or without

reasonable accommodation can perform the essential functions of the job he

desires; and (3) his employer discriminated against him because of his disability.

M cKenzie v. Dovala, 242 F.3d 967, 969 (10th Cir. 2001). 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).

      There are two apparent ways in which individuals may fall within
      [§ 12102(2)(C)]: (1) a covered entity mistakenly believes that a
      person has a physical impairment that substantially limits one or
      more major life activities, or (2) a covered entity mistakenly believes
      that an actual, nonlimiting impairment substantially limits one or
      more major life activities. In both cases, it is necessary that a
      covered entity entertain misperceptions about the individual – it must
      believe either that one has a substantially limiting impairment that
      one does not have or that one has a substantially limiting impairment
      when, in fact, the impairment is not so limiting.



                                          -6-
Doebele v. Sprint/United M gmt. Co., 342 F.3d 1117, 1132-33 (10th Cir. 2003)

(quoting Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999)).

      In his complaint, Endlich asserted that Yellow discriminated against him

because of his perceived disability by terminating his employment in violation of

42 U.S.C. § 12112(a). The district court granted summary judgment in favor of

Yellow on this claim because Endlich failed to show that Yellow perceived him to

be disabled within the meaning of the ADA. Specifically, the district court found

that “[Endlich] has presented no evidence that [Yellow] believed he had a

substantially limiting impairment or ‘regarded’ him as having a disability.”

To reach this conclusion, the district court assumed that Endlich was asserting

that Yellow regarded him as having a physical impairment that substantially

limited him in the major life activity of working, a so-called “regarded as” claim.

See, e.g., Doebele, 342 F.3d at 1132.

      On appeal, Endlich argues that the district court erred in concluding that he

needed to present evidence demonstrating that Yellow regarded him as

substantially limited in a major life activity. Endlich argues alternatively that

even if this evidence was necessary, the district court erroneously rejected

evidence that Endlich was limited in major life activities other than working.

On this basis, he claims sufficient evidence was introduced to survive summary

judgment.




                                          -7-
      In its motion for summary judgment, Yellow asserted that it terminated

Endlich for being dishonest in his employment application and for unsatisfactory

job performance. Yellow also presented evidence that it did not regard Endlich as

having any substantially limiting physical impairments. For example, Yellow

provided testimony from Deck, Endlich’s linehaul manager, in which he stated

that he had no reason to believe that Endlich was not physically qualified to

operate a motor vehicle and that Endlich had passed the physical examination by

the company doctor, as well as the driving test. Yellow also provided testimony

from Endlich himself in which he stated that he did not believe that anyone who

was involved in testing him and interacting with him during the hiring process

perceived him to be disabled.

      Endlich argues that under Doebele v. Sprint/United M gmt. Co. a “regarded

as” plaintiff need only show that the employer entertains “myths, fears, and

stereotypes” about an employee without identifying how she is perceived to be

substantially limited in a major life activity. Doebele, however, stands for no

such proposition. Reversing the district court’s grant of summary judgment on

the “regarded as” claim, we held “M s. Doebele presented a fact issue on whether

[her employer’s] adverse employment actions were motivated by the fact that her

supervisors regarded her as substantially limited from a broad class of jobs by her

mental impairments. Her coworkers and supervisors knew she had mental

problems even before she was diagnosed as bipolar by Dr. Urdaneta.” Id. at

                                         -8-
1135. Thus, Endlich is mistaken when he asserts that Doebele simply requires a

showing that the employer entertain myths, fears, and stereotypes about an

employee, or that the requirements for a plaintiff bringing a regarded as claim

have changed.

      In order to survive summary judgment, Endlich needed to produce evidence

that created a genuine issue of material fact as to whether 1) Yellow believed he

was substantially limited in a major life activity when he was not so limited, or

2) that he had a limitation that Yellow considered to be substantial limitation in a

major life activity when in fact it was not so limiting. See Doebele, 342 F.3d

at 1132. In his response to summary judgment, Endlich failed to identify how

Yellow perceived him to be substantially limited in any major life activity, and

summary judgment was proper.

      Endlich has not cited any record evidence to support his assertion that

Yellow regarded him as being substantially limited in the major life activities of

reaching, throwing, lifting or driving. Neither does he offer any record evidence

in support of his position that Yellow regarded him as substantially limited in the

major life activity of working. The only record citation he provides is for the fact

that Endlich won his contested workers’ compensation hearings. That

information simply does not provide any support for his claim that Yellow

regarded him as substantially limited in the major life activity of working.




                                         -9-
      Because Endlich failed to provide any evidence of how Yellow regarded

him as being substantially limited in any major life activity, he cannot establish

one of the necessary elements for his prima facie case of discrimination under the

ADA. The district court was correct in granting summary judgment in favor of

Yellow. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (explaining that

summary judgment is mandated “against a party who fails to make a showing

sufficient to establish the existence of an element essential to that party’s case,

and on which the party will bear the burden of proof at trial”).

      Endlich also asserts that his termination had also resulted from an

impermissible inquiry about his medical history in violation of the ADA. Endlich

argues that the district court erred in granting summary judgment on this claim

because Y ellow interpreted certain of its pre-employment questions to require

disclosure of workers’ compensation claims, and deliberately sought and obtained

information about those claims from the lawyer opposing Endlich’s workers’

compensation claim. Having reviewed the record, we affirm the district court’s

decision on Endlich’s impermissible inquiry claim for substantially the reasons

set forth in the district court’s orders entered April 19 and M ay 11, 2005.

      The judgment of the district court is AFFIRM ED.

                                        Entered for the Court


                                        Carlos F. Lucero
                                        Circuit Judge

                                          -10-
