                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 18 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    KEVIN MCDOWELL,

                Plaintiff-Appellant,

    v.                                                   No. 98-3100
                                                    (D.C. No. 96-CV-1138)
    FARMLAND INDUSTRIES, INC.,                             (D. Kan.)

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before BRORBY , EBEL , and BRISCOE , Circuit Judges.



         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      This order and judgment is not binding precedent, except under the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 Kevin McDowell appeals the district court’s order granting

summary judgment to defendant on his claim that defendant’s decision to

terminate his employment violated the Americans with Disabilities Act (ADA),

42 U.S.C. §§ 12101-12213. We exercise jurisdiction pursuant to 28 U.S.C.

§ 1291 and affirm.

      In 1975, plaintiff was employed by defendant as a transfer pumper.

He sustained numerous injuries while working. In 1989, plaintiff suffered an

on-the-job injury to his left knee and received workers’ compensation benefits.

After he returned to work from that injury, Steve Bruning, the plant manager,

posted a notice showing the monetary cost to the employer of plaintiff’s knee

injury. Bruning left defendant’s employ in March of 1992. On March 12, 1992,

plaintiff injured his right knee. He claimed the injury had occurred while he was

at work, even though the injury was not reported until April 6, 1992. Plaintiff

again received workers’ compensation benefits. Following his return to work

after this injury, plaintiff’s supervisor, Tom Harm, sent him a notice stating he

was very concerned about the number of accidents in which plaintiff had been

involved. Plaintiff met with Harm who plaintiff alleges told him he was thinking

of moving him to another department because of his knees, but he admits that

Harm never stated he could not perform the duties of transfer pumper. Plaintiff




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was not transferred, but continued working as a transfer pumper until his

employment was terminated.

      In 1982, plaintiff and others were laid off as part of a reduction in force.

In 1983, many of those laid off were rehired, including plaintiff. In 1991,

defendant decided it could retain only eighteen employees. The criteria for

retaining employees were seniority, performance and skills. Plaintiff initially

was on the list of employees to be retained, but two employees with less seniority

were moved ahead of him because they possessed skills plaintiff did not. As a

result, plaintiff’s employment was terminated in October 1992. He sued, claiming

violation of the ADA. The district court entered summary judgment in favor of

defendant, concluding that plaintiff had failed to show that he was perceived to be

disabled or that defendant discharged him based on a perceived disability.

      We review de novo the district court’s grant of summary judgment, viewing

the record in the light most favorable to the party opposing summary judgment.

See McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998).

Summary judgment is appropriate if there is no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law. See Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c).

      The ADA prohibits employers from discriminating against qualified

individuals with disabilities, on the basis of the disabilities, regarding conditions


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and privileges of employment.     See 42 U.S.C. § 12112(a). A “disability” is

defined 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;

              (C)    being regarded as having such an impairment.

Id. § 12102(2). “Thus, a person is ‘regarded as having’ an impairment that

substantially limits the person’s major life activities when other people treat that

person as having a substantially limiting impairment. The focus is on the

impairment’s effect upon the attitudes of others.”   MacDonald v. Delta Air Lines,

Inc. , 94 F.3d 1437, 1444 (10th Cir. 1996) (quotation omitted).

       Plaintiff asserts that defendant violated the ADA because it regarded him as

having a disability and terminated his employment for that reason. He does not

claim that he has an impairment that actually limits any major life activity or that

defendant believed he had a physical or mental impairment. Rather, plaintiff

alleges that defendant regarded him as disabled due to his history of filing

workers’ compensation claims.

       The district court held that plaintiff had failed to present a prima facie case.

To prevail on a claim of discriminatory discharge under the ADA, a plaintiff must

show (1) that he is a disabled person within the meaning of the ADA; (2) that he

is qualified, i.e., with or without reasonable accommodation, he is able to perform

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the essential functions of his job; and (3) that his employer fired him because of

his disability.    See White v. York Int’l Corp. , 45 F.3d 357, 360-61 (10th Cir.

1995). “[T]he plaintiff bears the initial burden of establishing a prima facie

case by a preponderance of the evidence.”         Butler v. City of Prairie Village   ,

No. 97-3291, 1999 WL 191116, at *9 (10th Cir. Apr. 6, 1999).

       Plaintiff maintains that defendant perceived him as disabled because he had

filed two workers’ compensation claims in the past and supervisor Harm feared he

would injure himself again and file additional claims. Plaintiff’s reliance on the

appendix to 29 C.F.R. part 1630 is misplaced. That regulation provides that an

individual will be regarded as disabled if he can show that an employment

decision was made “because of a perception of disability based on ‘myth, fear

or stereotype.’”     Id. pt. 1630, app. Moreover, an employer may refuse to hire

a handicapped individual who poses a significant danger to himself or others

in the workplace, where the danger cannot be eliminated by reasonable

accommodation.       See 42 U.S.C. §§ 12111(3), 12113(b);       LaChance v. Duffy’s

Draft House, Inc. , 146 F.3d 832, 835-36 (11th Cir. 1998) (termination of

employee with epilepsy did not violate ADA where plaintiff failed to produce

evidence that he was not risk of harm to himself and others; employer considered

his disability individually, not stereotypically; and plaintiff did not show

reasonable accommodation was available);          Daugherty v. City of El Paso , 56 F.3d


                                            -5-
695, 698 (5th Cir. 1995) (ADA allows qualification standards for safety when

hiring individual with disability);   cf. Knapp v. Northwestern Univ. , 101 F.3d 473,

483 (7th Cir. 1996) (under Rehabilitation Act, significant risk of injury can

disqualify person if risk cannot be eliminated, but risk of injury must be examined

with care); Mantolete v. Bolger , 767 F.2d 1416, 1422-23 (9th Cir. 1985)

(Rehabilitation Act permits employer to screen out individuals on basis of

possible future injury where risk of harm is substantial, but requires employer to

evaluate whether risk of harm can be reasonably accommodated). Here, however,

we need not discuss the circumstances under which an employer may decline to

employ a handicapped individual based on safety concerns because we reject

plaintiff’s claim that defendant regarded him as disabled solely because he had

a history of filing workers’ compensation claims.   1



       We reject plaintiff’s “regarded as disabled” claim for the additional reason

that he has not shown that defendant perceived that he was substantially limited in

one or more major life activities.    See 42 U.S.C. § 12102(2)(A), (C). Plaintiff

must identify the major life activity defendant believed was limited by his

impairment. See Poindexter v. Atchison, Topeka & Santa Fe Ry.        , 168 F.3d 1228,

1230 (10th Cir. 1999). Plaintiff claims that defendant regarded him as being


1
     We express no opinion on whether an employee discharged for filing for
workers’ compensation may have a claim under another theory.


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disabled from performing all heavy labor jobs. We will assume without deciding

that heavy labor is “either a class of jobs or a broad range of jobs in various

classes,” that qualifies under the ADA as a major life activity of working.     Bolton

v. Scrivner, Inc. , 36 F.3d 939, 942 (10th Cir. 1994) (quotation and emphasis

omitted). Defendant continued to employ him in the position of transfer pumper

until the conclusion of his employment. It is undisputed that the transfer pumper

job required heavy lifting and other tasks requiring physical strength and

flexibility. We conclude that plaintiff has failed to establish the first criterion

of a prima facie case–that he is a disabled person within the meaning of the

ADA–because he has failed to demonstrate that defendant regarded him as having

an impairment that substantially limited one or more major life activities.

Accordingly, summary judgment was appropriate because plaintiff “fail[ed] to

make a showing sufficient to establish the existence of an element essential to

[his] case, and on which [he] will bear the burden of proof at trial.” Celotex

Corp., 477 U.S. at 322.

       The opinions of plaintiff’s former coworkers, reported by an investigator

for the Kansas Human Rights Commission, are inadmissable hearsay and

therefore are inadequate to resist summary judgment.       See Jeffries v. Kansas ,

147 F.3d 1220, 1224 n.1 (10th Cir. 1998). Moreover, the coworkers’ statements

are irrelevant, given our holding that an employer’s belief that an individual is


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a high risk for workers’ compensation claims, without more, is not a disability

under the ADA.

      The judgment of the United States District Court for the District of Kansas

is AFFIRMED.



                                                   Entered for the Court



                                                   Wade Brorby
                                                   Circuit Judge




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