                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                               APR 24 2000
                            FOR THE TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 BENJAMIN N. BAFFOE, an
 individual,

       Plaintiff - Appellant,
                                                           No. 99-6199
 v.                                                     (W.D. Oklahoma)
                                                    (D.C. No. CIV-98-1256-W)
 W. H. STEWART CO.,

       Defendant - Appellee.


                            ORDER AND JUDGMENT              *




Before BRISCOE , McWILLIAMS , and ALARCÓN , ** Circuit Judges.




      Benjamin N. Baffoe (“Baffoe”) appeals from the dismissal of this action

pursuant to the order granting summary judgment in favor of the W. H. Stewart

Co. (“W. H. Stewart”). Baffoe contends that the district court erred in concluding

that there is no genuine issue of material fact in dispute regarding whether he was



      *
               This order and judgment is not binding precedent, except under the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.
      **
              The Honorable Arthur L. Alarcón, Senior United States Circuit Judge for
the Ninth Circuit, sitting by designation.
denied employment by W. H. Stewart in violation of the Americans with

Disabilities Act of 1990 (the “ADA”), 42 U.S.C. § 12101 et seq., and unlawfully

terminated as a temporary worker in violation of the Oklahoma Workers’

Compensation Act, Okla. Stat. tit 85, § 5.

      We affirm because we conclude that Baffoe failed to present evidence that

he was denied employment by W. H. Stewart in violation of the ADA. We also

hold that Baffoe has failed to demonstrate that W. H. Stewart terminated his

assignment as a temporary worker in retaliation for filing workers’ compensation

claims against his former employers.

                                             I

      W. H. Stewart is a steel fabricating “job shop.” Its labor force varies

according to the number of orders it receives. Because its need for workers is

cyclical, it relies on temporary employment agencies to provide unskilled

laborers. About 28% of W. H. Stewart’s work force consists of temporary

workers.

      Snelling Personnel Services (“Snelling”) provides temporary workers to

businesses needing such assistance. At all relevant times, Baffoe was an

employee of Snelling. W. H. Stewart entered into a contract with Snelling to

provide it with temporary workers. In March of 1995, Snelling assigned Baffoe

to work for W. H. Stewart temporarily as a deburr operator. Pursuant to its


                                         -2-
contract with Snelling, W. H. Stewart paid Snelling for Baffoe’s services as a

temporary worker. Baffoe testified at his deposition that during the entire time he

was assigned to work at W. H. Stewart, he was a Snelling employee – not a W. H.

Stewart employee. 1

      It is W. H. Stewart’s policy to make a conditional offer of employment to

temporary workers after they have worked between six months and one year.

W. H. Stewart made Baffoe a conditional offer of employment in December of

1995. The offer was contingent upon the satisfactory completion of a medical

examination and whether a background check revealed that Baffoe’s

representations regarding his medical history were truthful. Thereafter, Baffoe

applied for the position of deburr operator with W. H. Stewart, the same job to

which he had been assigned as a temporary worker. After the offer of

employment, Baffoe was sent to a physician for a physical examination. He was

required to fill out a medical history form. He failed to list on that form that he

suffered an on-the-job injury to his back while working for another employer

prior to his temporary assignment at W. H. Stewart. Instead, he represented that

he had had a back x-ray and undergone operations for a hernia in 1991 and



      1
              The ADA prohibits discrimination against disabled job applicants or
employees. See 42 U.S.C. § 12112(a). Thus, whether Baffoe was an employee of W. H.
Stewart or Snelling when W.H. Stewart withdrew its offer of employment is not relevant
to our consideration of the merits of his ADA claim.

                                          -3-
tendinitis in 1994. Orally, Baffoe represented to Norman Seide, W. H. Stewart’s

controller: “I had no injuries at all.”

      As part of the background check that it performs on temporary workers who

apply for employment, W. H. Stewart routinely checks to determine whether an

applicant has filed for workers’ compensation benefits in order to compare the

prior medical history obtained from the applicant with his or her claims of prior

on-the-job injuries filed before the Workers’ Compensation Court. An

examination by W. H. Stewart’s personnel of the workers’ compensation records

in this case revealed that Baffoe had experienced lower back pain in 1993. His

back was x-rayed in diagnosing his complaint. A medical examiner concluded

that Baffoe had a 21% permanent partial disability due to injuries to the lumbar

spine. The records also disclosed that in 1994, Baffoe had tendinitis in his wrists.

This condition required surgery on his left wrist. The surgery was performed on

July 6, 1994. In a report dated September 29, 1994, submitted in a workers’

compensation action against a former employer, a medical examiner concluded

that Baffoe had a 15% permanent partial disability as a result of the tendinitis in

his hands. The same medical report also disclosed that Baffoe had been released

from physical therapy on September 6, 1994 and returned to work on or about

September 22, 1994.

      W. H. Stewart has a long-standing policy that it will not hire an applicant


                                          -4-
who gives false information on an employment application or on a medical history

form. Upon discovering that Baffoe had misrepresented facts concerning his

medical history, W. H. Stewart withdrew its conditional offer of employment.

Seide informed Baffoe that the conditional offer had been withdrawn because he

had not been truthful in his responses to the medical history form. Seide

explained to Baffoe that W. H. Stewart’s insurance carrier would not allow the

company to hire someone who had been awarded workers’ compensation benefits

for on-the-job injuries while working for a former employer. Seide told Baffoe

that while he could not hire him as a W. H. Stewart employee, he could continue

to work there on a temporary assignment. Baffoe agreed to continue his

temporary assignment with W. H. Stewart. During the entire time that Baffoe was

assigned as a temporary worker at W. H. Stewart, Snelling paid the workers’

compensation insurance premiums to cover any benefits resulting from any on-

the-job injuries that he might suffer at W. H. Stewart.

      After the withdrawal of the conditional offer of employment, Baffoe

continued his assignment at W. H. Stewart as a Snelling temporary worker for

over one year. During that time, Baffoe repeatedly complained about the fact that

he had not been made a regular employee of W. H. Stewart. In June or July of

1996, Baffoe asked John Walsh, W. H. Stewart’s plant manager, to explain why

Baffoe had not been hired as an employee of W. H. Stewart. Walsh informed


                                         -5-
Baffoe that he could not be hired because he had given false information to the

doctor regarding whether he was permanently disabled. Baffoe denied that he

was permanently disabled. Walsh then stated that if Baffoe could obtain a

medical report stating he was no longer permanently disabled as a result of the

injury to his hands, Walsh would hire him. After his conversation with Walsh,

Baffoe obtained a new medical report dated September 3, 1996 which stated: “Mr.

Benjamin Baffoe is physically capable of performing any type of physical work at

this time. His previous ailments have completely cleared.” Baffoe was unable to

deliver the medical report to Walsh because he was on administrative leave.

      Baffoe did not receive an offer of employment after he delivered the new

medical report to a supervisor. While there is some dispute in the record

regarding whether Baffoe created a disturbance in W. H. Stewart’s reception area

in December of 1996, the record discloses that W. H. Stewart informed Snelling

that Baffoe should not be assigned to work for W. H. Stewart shortly after he

forcefully stated his position that he should be hired as a full-time regular

employee. Snelling reassigned Baffoe to work for a different company.

      On August 17, 1998, Baffoe filed a petition in the District Court of

Oklahoma County, State of Oklahoma, to recover past wages and benefits, future

wages and benefits, compensation for emotional distress, and punitive damages

for violations of the ADA and the Oklahoma Workers’ Compensation Act. The


                                          -6-
action was removed by W. H. Stewart to the United States District Court for the

Western District of Oklahoma on September 15, 1998. On April 29, 1999, the

district court entered summary judgment in favor of W. H. Stewart on Baffoe’s

state and federal claims. Baffoe filed a timely notice of appeal on May 21, 1999.

This court has jurisdiction pursuant to 28 U.S.C. § 1291.

                                          II

      Baffoe first contends that the district court erred in concluding that he was

not unlawfully discriminated against because he was not disabled under the ADA.

We review de novo a district court’s decision granting summary judgment. See

Smith v. Midland Brake, Inc., 180 F.3d 1154, 1159-60 (10th Cir. 1999) (en banc).

“Summary judgment is appropriate if the pleadings, depositions, answers 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.” Id. (citing Fed. R. Civ. P. 56(c))

(quotations omitted).

      The ADA is a federal antidiscrimination statute enacted by Congress to

remove barriers that prevent qualified individuals from enjoying employment

opportunities that are available to individuals without disabilities. See 29 C.F.R.

pt. 1630, App. To establish a prima facie case of discrimination under the ADA,

an individual must first establish that he or she is a disabled individual within the


                                          -7-
meaning of the statute. See Rascon v. U.S. West Telecomm., Inc., 143 F.3d 1324,

1332 (10th Cir. 1998). Under the ADA, an individual is disabled if he or she (1)

has a physical or mental impairment that substantially limits one or more major

life activities, (2) has a record of such an impairment, or (3) is regarded as having

such an impairment. See 42 U.S.C. § 12102(2).

       Baffoe does not claim that he in fact suffers from a physical impairment

that substantially limits his ability to work. 2 To the contrary, he presented a

medical report, in his opposition to the motion for a summary judgment, which

states that “he is physically capable of performing any type of physical work at

this time.” The report further states that “[h]is previous ailments have completely

cleared.” The record also shows that Baffoe successfully performed the duties of

a deburr operator for approximately 18 months without requiring an



       2
                For the first time in his reply brief, Baffoe asserts that his impairments
affected other major life activities, including lifting. We decline to consider this
contention because he raised the issue for the first time in his reply brief. See Headrick v.
Rockwell Int’l Corp., 24 F.3d 1272, 1278 (10 Cir. 1994) (stating that an appellant who
fails to raise an issue in an opening brief waives it). Moreover, while a plaintiff may
normally wait until trial to prove with particularity the impairment and major life activity
at issue, Baffoe could not have avoided making such a showing under Rule 56 of the
Federal Rules of Civil Procedure after W. H. Stewart challenged the alleged disability in
its motion for summary judgment. See Wilson v. International Bhd. of Teamsters,
Chauffeurs Warehousemen, 47 F. Supp.2d 8, 11 n.2 (D.D.C. 1999) (holding that a
plaintiff must establish with particularity the substantial impairment and the major life
activity in response to a defendant’s motion for summary judgment); cf. Poindexter v.
Atchison, Topeka & Santa Fe Ry. Co., 168 F.3d 1228, 1231 (10th Cir. 1999) (holding that
a plaintiff must prove the elements of a disability with particularity at trial).

                                             -8-
accommodation.

      Baffoe maintains that the district court erred in concluding that he did not

have a record of a physical impairment that substantially limited his ability to

perform the major life activity of working. We disagree. The record shows that

prior to being assigned to W. H. Stewart as a temporary worker, Baffoe was

awarded workers’ compensation benefits from previous employers for injuries to

his hands and back. The record also shows that each of these injuries was

initially rated as a permanent partial disability. In a letter dated September 29,

1994, however, Dr. Griffith C. Miller stated that Baffoe had been released to

return to work. As noted above, a medical report dated September 3, 1996 states

that Baffoe’s “previous ailments have completely cleared.”

      The Workers’ Compensation Court’s records do not show that he had a

record of an impairment that substantially limited his ability to work when the

offer of employment was withdrawn by W. H. Stewart. “For an impairment to

substantially limit a major life activity, the individual must be unable to perform,

or be significantly limited in the ability to perform, an activity compared to an

average person in the general population.” Sorensen v. University of Utah

Hospital, 194 F.3d 1084, 1087 (10th Cir. 1999) (citing 29 C.F.R. § 1630.2(j). The

medical records in the Workers’ Compensation Court files reflect that while

Baffoe was unable to work while he recovered from the surgery for tendinitis, he


                                          -9-
was released to return to work in less than three months after he completed his

physical therapy. Thus, these records indicate that Baffoe suffered from

“[t]emporary, non-chronic impairments of short duration, with little or no long-

term or permanent impact.” 29 C.F.R. pt. 16330, App. § 1630.2(j). Such

impairments are usually not classified as disabilities under the ADA because they

do not impose a substantial limitation on the ability to work. See id.; see, e.g.,

Colwell v. Suffolk County Police Dept., 158 F.3d 635, 646 (2d Cir. 1998)

(finding that a recorded impairment was not substantially limiting where the

employee was hospitalized for approximately 30 days, remained at home for

approximately six months following his hospitalization, and was placed on light

duty for seven years following his return to work); Sanders v. Arneson Products,

91 F.3d 1351, 1354 (9th Cir. 1996) (holding that a three and one-half month

impairment with minimal residual effects was not substantially limiting). While

Baffoe has a record of physical impairments, the workers’ compensation records

do not reflect that his physical impairments substantially limited his ability to

work as a deburr operator.

    Baffoe further asserts that W. H. Stewart withdrew its offer of employment

because it regarded him as having a physical impairment that substantially limited

his ability to work. The record does not support this contention. As noted above,

W. H. Stewart permitted Baffoe to continue to work as a deburr operator for


                                         -10-
approximately one year after it withdrew its offer of employment. That job

required him to stand, walk, use his hands, and regularly lift or move objects

weighing up to one hundred pounds. Baffoe’s own persistent insistence that he

was not disabled, and the fact that he was allowed to continue to be assigned after

W. H. Stewart’s personnel reviewed his workers’ compensation records, is

compelling evidence that W. H. Stewart did not regard his physical impairments

as substantially limiting his ability to work.

      In a recent unpublished opinion of this court, an employee also maintained

that his employer perceived him as disabled because he had previously filed two

workers’ compensation claims against the employer and “supervisor Harm feared

he would injure himself again and file additional claims.” McDonnell v.

Farmland Industries, Inc., No. 98-3100, 1999 WL 311477, at 182 F.3d 932 (10th

Cir. May 18, 1999). This court rejected the employee’s contention because the

employer continued to employ the plaintiff-appellant at the same job for more

than six months, after he received workers’ compensation benefits. Id. In

rejecting this contention, this court stated: “[A]n employer’s belief that an

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

disability under the ADA.” Id. at *3. In reaching this conclusion, the court

reasoned as follows:

      Defendant continued to employ him in the position of transfer
      pumper until the conclusion of his employment. It is undisputed that

                                          -11-
       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.

Id. at *3.

       This court affirmed the order granting summary judgment because the

employee had failed to make a showing sufficient to establish that his employer

perceived him to be disabled under the ADA. Id. Although we recognize that

McDonell is not binding precedent because it is not a published opinion of this

court, 10th Cir. R.36.3, we find it persuasive and adopt its analysis. The fact that

W. H. Stewart’s personnel reviewed the Workers’ Compensation Court records

and expressed concern about Baffoe’s physical impairments and the possibility

that he might reinjure himself does not demonstrate that he was regarded as

disabled, as that term is defined in the ADA, when the offer of employment was

withdrawn, in view of the fact that he was allowed to continue working as a

deburr operator for approximately one year before his temporary worker status

was terminated.

       We emphasize that Baffoe’s reliance on statements by W. H. Stewart’s

personnel that he was “disabled” or had a “disability” largely misperceives the

scope of the protection afforded to an employee under the ADA. The issue in this


                                         -12-
appeal is not whether Baffoe had a record of a disability or whether he was

perceived as being disabled as that term is defined under the Oklahoma Workers’

Compensation Act. Instead, we must decide whether Baffoe had a record of a

disability, or was perceived as disabled, as those terms are used in the ADA.

Though statements made in connection with an application for disability benefits

may be probative as to the question whether an employee suffers from a mental or

physical disability that substantially limits one or more major life activities, they

are neither dispositive of the inquiry nor sufficient to give rise to a genuine issue

of material fact. See Aldrich v. Boeing Co., 146 F.3d 1265, 1268-69 (10 th Cir.

1998). A record of disability “must be one that shows an impairment that

satisfies the requirements of the ADA; a record reflecting a plaintiff’s

classification as disabled for other purposes or under other standards is not

enough.” Colwell, 158 F.3d at 645. A perception that an employee is disabled

must also be one that the individual is disabled under the ADA and not that he or

she is disabled for some other purpose.

      In the present case, it was not enough for Baffoe to present evidence that

his workers’ compensation records used the word “disabled” or that they provided

him with a permanent disability rating. Nor was it sufficient for Baffoe to show

that W. H. Stewart employees referred to him as disabled or at risk for reinjury.

Rather, Baffoe was required to establish that he had a record of an impairment


                                          -13-
that substantially limited his ability to work or that he was regarded as having

such an impairment. See 42 U.S.C. 12102(2). Because he failed to do so, the

district court did not err in granting summary judgment on his ADA claim.

                                           III

       In a separate cause of action, Baffoe contends that W. H. Stewart violated

the Oklahoma Workers’ Compensation Act when it requested Snelling to

terminate his temporary work assignment. 3 Baffoe argues that W. H. Stewart took

this action in retaliation for the fact that he filed workers’ compensation claims

against two previous employers. An employer may not terminate an employee for

exercising his or her rights under the Oklahoma Workers’ Compensation Act.

Taylor Cache Creek Nursing Centers, 891 P.2d 607, 609 (Okla. App. 1994).

       To establish a prima facie case of retaliatory discharge under the Oklahoma

Workers’ Compensation statute, a discharged employee must show (1) that he or

she was an employee of the defendant, (2) that he or she suffered an on-the-job

injury, (3) that he or she received medical treatment under circumstances which


       3
               The Oklahoma Workers’ Compensation Act provides, in pertinent part:

               No person, firm, partnership, corporation or other may
               discharge, or, except for non-payment of premium, terminate
               any group health insurance of any employee because the
               employee has in good faith:
               1. Filed a claim. . . .

Okla. Stat. tit. 85, § 5(A)(1).

                                           -14-
put the employer on notice that the treatment had been rendered for an on-the-job

injury, (4) that he or she instituted workers’ compensation proceedings in good

faith, and (5) that his or her employment was terminated as a result. See Buckner

v. General Motors Corp., 760 P.2d 803, 806 (Okla. 1988).

      In Wallace v. Halliburton, 850 P.2d 1056 (Okla. 1993), the Oklahoma

Supreme Court held that: “The evidence must be at least sufficient to support a

legal inference the discharge was significantly motivated by retaliation for

exercising one’s statutory rights.” Id. at 1058. The Oklahoma Supreme Court

reasoned that “[o]therwise . . . any employer could be subjected to a jury trial

based purely on the coincidence of a discharged employee who had at sometime

filed a Workers’ Compensation claim.” Id.

      In Wallace v. Halliburton, the employee was fired 37 days after he filed a

workers’ compensation claim. Id. The employee also presented evidence of a

pattern of terminating employees who filed workers’ compensation claims. Id.

The Oklahoma Supreme Court concluded that the trial court did not err in

overruling the employer’s motions for a directed verdict and a new trial. Id.

      Here, Baffoe did not present evidence that W. H. Stewart had a policy or

practice of terminating employees who file workers’ compensation claims. See

Blackwell v. Shelter Mut. Ins. Co., 109 F.3d 1550, 1555 (10th Cir. 1997). Baffoe

was reassigned approximately one year after W. H. Stewart learned that Baffoe


                                         -15-
had filed workers’ compensation claims against previous employers. Looking at

the entire evidence in the light most favorable to Baffoe, “we do not believe a

reasonable jury could conclude [his] [reassignment] was significantly motivated

by retaliation for exercising [his] rights under the Workers’ Compensation Act.

[Baffoe] has simply failed to establish a nexus between [his] termination and any

protected activity on [his] part.” Id. at 1556. Because we conclude that Baffoe

failed to present sufficient evidence to demonstrate that W. H. Stewart’s request

for a reassignment was significantly motivated by the filing of workers’

compensation claims against previous employers, we need not decide whether

Baffoe was an employee of W. H. Stewart, under the loaned-servant doctrine, or

whether the Oklahoma Workers’ Compensation Act applies when the claim was

filed for an injury that occurred while the employee worked for a previous

employer.

                                  CONCLUSION

      Baffoe has failed to demonstrate that he is a disabled individual under the

ADA. He has also failed to present sufficient evidence to meet his burden of

proof that W. H. Stewart’s decision to request that Snelling reassign him was

significantly motivated by the fact he had filed workers’ compensation claims

against previous employers. The judgment of the district court is AFFIRMED.

Baffoe’s motion to strike W. H. Stewart’s supplemental appendix and portions of


                                        -16-
the response brief is DENIED as moot. W. H. Stewart’s motion to withdraw its

supplemental appendix and file an amended brief is GRANTED.




                                    Entered for the court



                                    Arthur L. Alarcón
                                    Senior Circuit Judge




                                      -17-
