                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 22 1999
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                  Clerk

 HOWARD PRINCE,

          Plaintiff-Appellant,

               v.                                        No. 98-1064
                                                     (D.C. No. 96-S-2384)
 RIECKE CLAUSSEN, Mesa County                             (D. Colo.)
 Sheriff,

          Defendant-Appellee.




                             ORDER AND JUDGMENT *


Before PORFILIO, BALDOCK, and BRISCOE, Circuit Judges.


      Plaintiff Howard Prince appeals the district court’s entry of summary

judgment in favor of defendant Riecke Claussen on Prince’s claims under the

Americans with Disabilities Act, 42 U.S.C. § 12101    et seq. , and 42 U.S.C. §

1983. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.




      *
        This order and judgment is not binding precedent, except under the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.
                                           I.

      Prince began working as a deputy sheriff with the Mesa County, Colorado,

Sheriff’s Department in 1987. In November 1990, he injured his right shoulder

while on the job, and he aggravated the condition two months later in another

workplace accident. He was diagnosed with acute impingement of the

supraspinatus tendon in the right shoulder and underwent two surgeries in 1991.

Dr. David Mayer rated the permanent impairment to Prince’s right arm and neck

as an eighteen percent “whole person” impairment. Prince’s activities were

temporarily limited to light duty work, but he was released in September 1991 to

work without restriction.

      Prince was reinstated to the SWAT team in late 1991. He allegedly spoke

to his supervisor, Lieutenant Earl Houck, about limitations on his work activities

and Houck accommodated him by not putting him in situations where he was

required to make physical arrests. Less than two months after rejoining the

SWAT team, Undersheriff Dave Wooley removed Prince from the SWAT team,

allegedly because of Prince’s decision to file a workers’ compensation claim, and

Prince returned to his job as a street patrol deputy.

      In September 1994, Prince injured his left knee on the job and he had

arthroscopic surgery. He returned to work several weeks later on light duty

status. In December 1994, Dr. Ronald Fawcett rated Prince’s permanent


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impairment from the knee injury as a six percent “whole person” impairment. Dr.

Fawcett imposed no work restrictions on Prince.

      In 1994, Prince supported Bob Silva in his unsuccessful election campaign

for sheriff against incumbent Claussen. According to Prince, he was told by three

unidentified members of the sheriff’s staff he would be discharged for his

disloyalty if Claussen lost the election. Houck also claimed Wooley told a group

of deputies in 1992, following Claussen’s first election, they would be terminated

if they supported Claussen’s opponent. Prince notes numerous individuals who

supported Silva lost their jobs following his defeat; however, Prince presents no

evidence the discharges were related to political activities.

      On December 27, 1994, Wooley notified Prince that a discipline review

committee had been appointed to investigate Prince’s alleged violations of

departmental disciplinary rules and procedures (abuse of power through

intimidation of subordinate employee, insubordination, abuse of leave policies,

and failure to report damage to patrol vehicle). Following a hearing, the

committee recommended that Prince’s employment be terminated, and that

decision was upheld by the Discipline Appeals Board after another hearing.

Claussen subsequently upheld the discipline review committee’s decision on

February 14, 1995.

      In September 1996, Prince joined the Fruita, Colorado, police department


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as a patrolman. Prince asserts before he began his job as a patrolman, he

requested and was granted certain accommodations in his new job, including:

       wearing gun belt tilted lower on right side, velcro belt instead of
       leather with buckle to stay firm, not going out alone on domestic
       calls (go as backup), holster is mid-ride instead of high-ride, wear
       accessories on belt so they are accessible with left arm and not right,
       drive vehicle left-handed only, avoid physical altercations, no
       running in training or in patrol, no long periods of standing . . . [and
       no] arrest[s] without the assistance of another officer.

Aplt’s App. at 477, ¶ 16. There is no evidence in the record suggesting such

“accommodations” were required or requested during Prince’s tenure with the

Mesa County Sheriff’s Department. Prince’s duties in Fruita were nearly

identical to his street patrol deputy duties in Mesa County.

                                             II.

       This court reviews a grant of summary judgment de novo, applying the

same legal standard used by the district court.    Sundance Assocs., Inc. v. Reno   ,

139 F.3d 804, 807 (10th Cir. 1998). 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.” Fed. R. Civ. P. 56(c). “When applying this standard, we examine the

factual record and reasonable inferences therefrom in the light most favorable to

the party opposing summary judgment. If there is no genuine issue of material


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fact in dispute, then we next determine if the substantive law was correctly

applied by the district court.”   Id. (citation and quotation omitted).

                                           III.

                                  Evidentiary Ruling

       We review evidentiary decisions in a summary judgment ruling for an abuse

of discretion.   Wright-Simmons v. City of Oklahoma City      , 155 F.3d 1264, 1268

(10th Cir. 1998).

       Prince contends the district court abused its discretion in refusing to

consider affidavits of three former deputies. The district court correctly

concluded Prince’s submission of these affidavits was untimely. Prince has not

shown good cause for waiting until December 1997 to file the three affidavits and

to ask that the affidavits be considered in support of his summary judgment

response filed September 9, 1997, when the three affiants were included on his

list of potential witnesses almost a year earlier.

       Even assuming the court erred in failing to consider the affidavits, Prince

has suffered no prejudice. The affidavits contained nothing more than hearsay

and speculation that the former deputies and others were terminated because of

their support of Claussen’s opponent. “In a response to a motion for summary

judgment, a party cannot rest on ignorance of facts, on speculation, or on

suspicion and may not escape summary judgment in the mere hope that something


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will turn up at trial.”   Conaway v. Smith , 853 F.2d 789, 794 (10th Cir. 1988).

                                   Section 1983 Claim

       Prince alleges he was discharged as a result of his support for Silva in the

1994 election. Claussen insists he did not terminate Prince for political reasons

and, even if he did, the law was not clearly established that such action

contravened the First Amendment. We need not determine whether the law was

clearly established because there is no evidence Prince lost his job based on his

political affiliations.

       To determine if a public employer has contravened an employee’s first

Amendment rights, we apply the four-part          Pickering/Connick test. See Pickering

v. Board of Educ. , 391 U.S. 563 (1968);     Connick v. Myers , 461 U.S. 138 (1983).

We first look to whether the speech in question involves a matter of public

concern. Dill v. City of Edmond , 155 F.3d 1193, 1201 (10th Cir. 1998) (citing

Connick , 461 U.S. at 146). If so, we consider whether the employee’s interest in

the expression outweighs the employer’s interest in regulating the speech “of its

employees so that it can carry on an efficient and effective workplace.”

Horstkoetter v. Department of Pub. Safety     , 159 F.3d 1265, 1271 (10th Cir. 1998)

(citing Pickering , 391 U.S. at 568). Assuming this balance tips in favor of the

employee, the employee must show his speech was a substantial factor in the

employer’s challenged action.      Id. (citing Mt. Healthy City Sch. Dist. Bd. of Educ.


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v. Doyle , 429 U.S. 274, 287 (1977)). If plaintiff makes such a showing, the

employer may demonstrate it would have taken the same action against the

employee even in the absence of the protected speech.      Id.

      We assume here Prince’s support for Silva was First Amendment protected

conduct which outweighed any interest Claussen might have in maintaining a

loyal and stable workforce. There is a paucity of evidence, however, to suggest

Claussen discharged Prince as a result of his political activities. Although the

relatively close temporal proximity between Prince’s protected conduct and his

subsequent termination may create an inference of unlawful retaliation,    see

Ramirez v. Oklahoma Dep’t of Mental Health       , 41 F.3d 584, 596 (10th Cir. 1994)

(layoffs one and one-half months following plaintiff’s submission of grievances

reflected possible retaliatory motive by employer), there is nothing in the record

undermining Claussen’s nondiscriminatory explanation for Prince’s discharge.

Prince characterizes Claussen’s explanations as pretextual based on comments of

various colleagues (most of whom are unidentified) who allegedly said and/or

heard that individuals supporting Silva would be fired. These statements are

hearsay. Hearsay “that would be inadmissible at trial may not be included in an

affidavit to defeat summary judgment because a third party’s description of a

witness’ supposed testimony is not suitable grist for the summary judgment mill.”

Thomas v. IBM , 48 F.3d 478, 485 (10th Cir. 1995) (citation and internal quotation


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omitted).

      Prince also argues Claussen ousted other deputies who supported Silva.

His sole evidence is his observation that multiple persons who appeared in a

campaign commercial for Silva are no longer with the sheriff’s department. Other

than hearsay and rank speculation, Prince offers no competent evidence that these

individuals were terminated or not reappointed because of their political

activities. Further, it is undisputed Claussen retained many deputies who had

actively supported Silva (not just the two Prince suggests in his brief). Prince has

failed to establish any genuine issue of material fact regarding his termination.

                                     ADA Claim

      Prince contends the sheriff’s department discriminated against him on the

basis of a purported disability by (1) failing to consider accommodations to allow

him to continue working with the SWAT, fire, and rescue teams, (2) failing to

transfer him to other jobs within the department; and (3) terminating his

employment.

      The first two allegations are clearly time-barred. The ADA expressly

adopts the enforcement procedures governing Title VII actions, including

administrative exhaustion requirements and filing procedures.    See 42 U.S.C. §

12117(a). An aggrieved party must file an administrative charge of

discrimination within 300 days of the alleged unlawful employment practice. 42


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U.S.C. § 2000e-5(e). The timely filing of such a charge is a prerequisite to suit.

Martin v. Nannie & The Newborns, Inc.       , 3 F.3d 1410, 1414 (10th Cir. 1993).

Although Prince has not cited dates, the record demonstrates the alleged refusals

to accommodate and transfer took place in 1991 and 1992. Moreover, many of

the incidents Prince references occurred prior to July 26, 1992, the effective date

of the ADA, and, thus, were not unlawful.         See Brown v. General Tel. Co. . 108

F.3d 208, 209 (9th Cir. 1997) (per curiam) (ADA is not retroactive and does not

apply to actions taken prior to statute’s effective date) (citing Pub. L. No. 101-

336, § 108, 104 Stat. 337 (1990)).

       With respect to the discharge decision, Prince is unable to state a prima

facie case. To state a prima facie claim of disability discrimination under the

ADA, Prince must show (1) he is “disabled,” (2) he is “qualified,” i.e., able to

perform essential functions of the job with or without reasonable accommodation,

and (3) he was discriminated against because of his disability.      Siemon v. AT&T

Corp. , 117 F.3d 1173, 1175 (10th Cir. 1997). An individual is considered

“disabled” under the ADA if he has a physical or mental impairment that

substantially limits one or more of his major life activities, has a record of such

an impairment, or is regarded as having such an impairment. 42 U.S.C. §

12102(2).




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Physical Impairment

        In assessing whether an individual has a physical or mental impairment that

substantially limits one or more major life activities, the court follows a three-

step process. We first consider whether the individual has an impairment, and

then examine whether the life activity upon which he relies constitutes a major

life activity.   Bragdon v. Abbott , 118 S. Ct. 2196, 2202 (1998). Finally, “tying

the two statutory phrases together,” we look to whether the impairment

substantially limits the asserted major life activity.    Id. We recently held “a

plaintiff must articulate with precision the impairment alleged and the major life

activity affected by that impairment.”       Poindexter v. Atchison, Topeka, and Santa

Fe Ry. Co. , 1999 WL 92255 at *4 (10th Cir. Feb. 24, 1999). A general statement

that plaintiff has an impairment substantially impacting a majority life activity

will not suffice.   Id.

        The ADA does not define impairment. However, the Supreme Court in

Bragdon adopted the definition in the regulations issued by the Department of

Health, Education, and Welfare in 1977.         See 118 S. Ct. at 2202. The

commentary following the regulations “contains a representative list of disorders

and conditions constituting physical impairments.”        Id. (quoting 42 Fed. Reg.

22685 (1977), reprinted in 45 C.F.R. pt. 84, App. A at 334 (1997)). Prince does

not explicitly specify his purported impairments but, based on his other


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arguments, it appears he claims orthopedic difficulties flowing from his shoulder

and knee injuries.

       “Major life activities” are defined as “functions such as caring for oneself,

performing manual tasks, walking, seeing, hearing, speaking, breathing, learning

and working.” 29 C.F.R. § 1630.2(i) (1998). This list is merely illustrative.

Other major life activities include, but are not limited to, sitting, standing, lifting,

and reaching. Poindexter , 1999 WL 92255 at *3. “[I]f the asserted major life

activity is not one of the examples listed . . ., under the plain meaning of the word

‘major,’ ‘the touchstone for determining an activity’s inclusion under the statutory

rubric is its significance.”   Id. (citing Bradgon , 118 S. Ct. at 2205) (additional

citation omitted). Prince maintains his impairments have implicated his ability to

walk, stand, run, lift, throw, squat, and work. Each constitutes a major life

activity under the ADA.

       For a physical or mental impairment to be “substantially limiting” on a

major life activity, an individual must be:

             (i) Unable to perform a major life activity that the average
       person in the general population can perform, or
             (ii) Significantly restricted as to the condition, manner or
       duration under which [he] can perform a particular major life activity
       as compared to the condition, manner, or duration under which the
       average person in the general population can perform that same
       major life activity.

29 C.F.R. § 1630.2(j)(1) (1998). Prince has offered no evidence to support any


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substantial limitations on his major life activities. Other than a one-sentence

conclusory statement in his affidavit, his sole evidence consists of a “functional

capacity evaluation report” by physical therapist Jane Whalen Price in April 1997.

According to Price, Prince is able to engage in “sustained activity” (walking,

standing, sitting) for up to two hours without a break, lift up to eighty pounds

from the floor to thirty-two inches (knuckle height), and stoop on a frequent

basis. Price concludes Prince’s “[f]itness level is adequate for the job demands of

a police officer.” Aplt’s App. at 611. Although it is conceivable Prince’s injuries

may have diminished his former physical capacities to some degree, he is not

“significantly restricted” in his ability to perform major life activities as

compared to the average person in the general population.



Record of Impairment

       An individual may be classified as disabled under the ADA if he “has a

history of, or has been misclassified as having, a mental or physical impairment

that substantially limits one or more major life activities.” 29 C.F.R. § 1630.2(k)

(1998). Prince returned to his job following his 1991 and 1994 surgeries with full

medical releases and no work restrictions. The fact that he was hospitalized

during the surgeries does not establish a record of impairment.     See Colwell v.

Suffolk County Police Dep’t , 158 F.3d 635, 645-46 (2d Cir. 1998) (quoting      Burch


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v. Coca-Cola Co. , 119 F.3d 305, 317 (5th Cir. 1997),     cert. denied 118 S. Ct. 871

(1998)); Gutridge v. Clure , 153 F.3d 898, 901 (8th Cir. 1998).



Regarded as Having Impairment

       Under this provision, an individual may be considered disabled if he:

              (1) Has a physical or mental impairment that does not
       substantially limit major life activities but is treated by a covered
       entity as constituting such limitation;
              (2) Has a physical or mental impairment that substantially
       limits major life activities only as a result of the attitudes of others
       toward such impairment; or
              (3) Has none of the impairments defined in paragraphs (h)(1)
       or (2) of this section but is treated by a covered entity as having a
       substantially limiting impairment.

See 29 C.F.R. § 1630.2( l). The theory behind this regulation is that “society’s

accumulated myths and fears about disability and disease are as handicapping as

are the physical limitations that flow from actual impairment.”     School Bd. of

Nassau County v. Arline , 480 U.S. 273, 284 (1987).

       Prince argues the sheriff’s department regarded him as disabled based on

his requested accommodations as well as his workers’ compensation injury

reports. As to the accommodations request, Prince stated unequivocally in

response to Claussen’s first interrogatories that he had never requested

accommodations during his employment. He later claimed in response to

Claussen’s second interrogatories that he had requested accommodations from


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Houck in 1991. In the absence of any explanation from Prince for the change in

his answer, we agree with the district court that the second interrogatories may be

disregarded as an attempt to create a sham issue.       See Franks v. Nimmo , 796 F.2d

1230, 1237 (10th Cir. 1986). In any event, none of the requested accommodations

suggested Prince was substantially limited in his ability to perform any major life

activity. With respect to the workers’ compensation reports, Prince’s evaluations

reflected he had no substantial limitations or work restrictions. In sum, the record

does not support Prince’s disability contention.

       Finally, Prince contends the district court abused its discretion in denying

his second motion to amend his complaint. The court did not abuse its discretion

in denying Prince’s motion which was filed long after the deadline to file such

motions and after Claussen had filed a motion for summary judgment. Further,

Prince has not alleged how the denial of his request to amend prejudiced his

action. Prince concedes the proposed changes clarified damage and attorney fees

requests, and were unrelated to his liability claims.

       AFFIRMED.

                                                    Entered for the Court

                                                    Mary Beck Briscoe
                                                    Circuit Judge




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