                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 25 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    McARTHUR WHITSON,

                Plaintiff-Appellant,

    v.                                                    No. 98-7054
                                                    (D.C. No. 97-CV-123-B)
    LeFLORE COUNTY BOARD OF                               (E.D. Okla.)
    COMMISSIONERS, aka Board of
    Commissioners of LeFlore County,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before TACHA , McKAY , 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      This order and judgment is not binding precedent, except under the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.
       This appeal arises from the district court’s grant of summary judgment in

favor of defendant on plaintiff’s claims under the Americans with Disabilities Act

(ADA), 42 U.S.C. §§ 12101-12213. Plaintiff claims that defendant violated the

ADA because it did not hire him on account of his disability. The district court

found that plaintiff did not establish a prima facie case under the ADA because he

did not show that defendant failed to hire him because of his disability.     See

Butler v. City of Prairie Village   , 172 F.3d 736, 748 (10th Cir. 1999) (setting forth

elements of prima facie case under ADA). On de novo review,           see Kaul v.

Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996), we agree that plaintiff’s evidence

does not establish that he applied for the position, nor does it show that the

person who made the statement plaintiff cites as evidence that his disability was

the reason he was not hired had any authority to hire for the position. We affirm

the grant of summary judgment for substantially the reasons stated in the district

court’s order dated March 26, 1998. AFFIRMED.

                                                         Entered for the Court



                                                         Michael R. Murphy
                                                         Circuit Judge




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