                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            AUG 1 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    BRENDA AIKEN,

                Plaintiff-Appellant,

    v.                                                   No. 99-1462
                                                     (D.C. No. 97-S-2505)
    CONTINENTAL AIRLINES, INC.,                           (D. Colo.)
    a Delaware corporation,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before BRORBY , ANDERSON , and MURPHY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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      This order and judgment is not binding precedent, except under the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 Brenda Aiken started working as a reservations clerk for defendant

Continental Airlines in April 1994 at its Smith Road facility in Denver. In

October 1994, she began to experience difficulty breathing while at work and was

later diagnosed with occupational asthma and hypersensitivity to certain

bioaerosols. She requested in December 1994 that Continental transfer her to

another facility as an accommodation for her asthma. Continental did not transfer

her and terminated her employment in May 1995 because she had not worked

since October and her inactive leave status equaled her total length of service.

Ms. Aiken then brought this action alleging that Continental discriminated against

her based on her disability, asthma, in violation of the Americans with

Disabilities Act, 42 U.S.C. § 12101-12213. The district court granted

Continental’s motion for summary judgment. Ms. Aiken appeals.

       We review a grant of summary judgment de novo, applying the same

standards as the district court applied under Fed. R. Civ. P. 56(c).     See Lowe v.

Angelo’s Italian Foods, Inc. , 87 F.3d 1170, 1173 (10th Cir. 1996). To establish

a prima facie case under the    McDonnell Douglas     2
                                                          burden-shifting scheme as

applicable to the ADA, Ms. Aiken must show that (1) she is a disabled person

within the meaning of the Act; (2) she is qualified, meaning that either with or

without reasonable accommodation, she can perform the essential functions of her


2
       McDonnell Douglas Corp. v. Green        , 411 U.S. 792, 802-04 (1973).

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job; and (3) Continental terminated her under circumstances giving rise to the

inference that she was terminated because of her disability.       See Hardy v.

S.F. Phosphates Ltd. , 185 F.3d 1076, 1079 n.2 (10th Cir. 1999). Relevant to her

claim, the ADA defines disability as “a physical or mental impairment that

substantially limits one or more of the major life activities of such individual.”

42 U.S.C. § 12102(2)(A). In determining whether an individual is disabled under

this definition, a court must first determine whether the individual has an

impairment, then identify the life activity upon which the individual relies and

determine whether it is a major life activity under the Act, and, finally, determine

whether the impairment substantially limits the major life activity.     See Doyal v.

Oklahoma Heart, Inc. , 213 F.3d 492, 495 (10th Cir. 2000). If an ADA plaintiff

establishes a prima facie case, the burden shifts to the employer to articulate a

legitimate nondiscriminatory reason for its action.      See Hardy , 185 F.3d at 1079.

If it does, the burden returns to the plaintiff to present evidence that the proffered

reason is not worthy of belief.   See id. at 1079-80.

       In the district court, Ms. Aiken alleged that her asthma was a physical

impairment substantially limiting her major life activities of breathing, caring for

herself, and sexual relations. The district court held that Ms. Aiken had not

established her prima facie case. It determined that because her asthma was

controlled though medication, it did not substantially impair her breathing or


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sexual relations.   See Sutton v. United Air Lines, Inc.   , 119 S. Ct. 2139, 2146

(1999). It also held that as Ms. Aiken described the activity of caring for

oneself--washing and styling her hair and cleaning her house--this was not a

major life activity, and that in any event, she had not demonstrated that she could

not perform these tasks. Alternatively, the court found that assuming Ms. Aiken

established her prima facie case, Continental had presented a legitimate

nondiscriminatory reason for her termination--its policy of terminating employees

who are on an inactive employment status for as long as they have been on active

employment status. The court concluded that she failed to present any evidence

indicating that this reason for her termination was false or that the real reason for

her termination was intentional discrimination based on her disability. It

therefore granted summary judgment to Continental.

       On appeal, Ms. Aiken contends that she is disabled by her asthma, though

she does not address the district court’s determination that her asthma is

adequately controlled by medication. She also contends that Continental’s failure

to transfer her to another facility upon her request or take other steps to

accommodate her alleged disability creates a disputed factual issue regarding

whether Continental’s stated reason for terminating her was pretextual. We have

considered her arguments and reviewed the record, and we conclude that the

district court correctly determined that she not had met her burden of showing she


                                            -4-
was disabled under the ADA. Therefore, for substantially the same reasons as

stated by the district court, we affirm its decision on this basis, and need not

address its alternate reason for granting summary judgment to Continental.

      AFFIRMED.



                                                      Entered for the Court



                                                      Wade Brorby
                                                      Circuit Judge




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