                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          FEB 19 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

PATRICIA D. SWART,

               Plaintiff-Appellant,

v.                                                        No. 03-1048
                                                      (D.C. No. 00-D-2105)
PREMIER PARKS CORPORATION;                                  (D. Colo.)
SIX FLAGS ELITCH GARDENS,

               Defendants-Appellees.


                            ORDER AND JUDGMENT           *




Before McCONNELL , ANDERSON , and BALDOCK , 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      This order and judgment is not binding precedent, except under the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 Patricia Swart appeals from a jury verdict rendered in favor of her

former employer, Premier Parks and Six Flags Elitch Gardens (Elitch) on her suit

alleging Elitch discharged her because of her disability, in violation of the

Americans with Disabilities Act, 42 U.S.C. §§ 12101 to 12213 (ADA). She

challenges the district court’s instruction to the jury regarding the impairments

she claimed and the major life activities affected by those impairments. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

                                          I.

      Plaintiff was hired in 1996 by Elitch, an amusement park, as a seasonal

employee. As such, she was laid off at the end of each park season, usually

October, and rehired at the start of the next. At the end of the 1998 season,

however, she was accepted for a position in Elitch’s corporate loss prevention

department. She began work in October 1998 and worked there year-round until

her termination in October 1999. Plaintiff believed her new job was a permanent,

year-round position; Elitch contended at trial that the position was seasonal.

      In May 1999, plaintiff was diagnosed with breast cancer and immediately

underwent a left radical mastectomy. She then underwent chemotherapy and

radiation treatments, which led to side effects of extreme fatigue, recurrent

headaches, nausea, vomiting, low blood counts, and anemia. She could not fully

lift her left arm and suffered insomnia. She missed time from work due to her


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chemotherapy and radiation treatments and the resultant fatigue and other side

effects, and she was often unable to work a full forty-hour work week.

       In October 1999, Elitch ordered all non-essential seasonal personnel to be

laid off. Plaintiff’s supervisor retained one seasonal employee and a newly hired

employee, but laid off plaintiff. Plaintiff contended she was selected for

termination because of her breast cancer and related disabilities. Elitch contended

she was terminated because she was a non-essential, seasonal employee. Two

years later, plaintiff underwent further surgery and lost her right breast.

                                             II.

       “The ADA prohibits employment discrimination on the basis of an

employee’s disability.”      Doebele v. Sprint/United Mgmt. Co.   , 342 F.3d 1117, 1128

(10th Cir. 2003). At issue in this case is ADA provision 42 U.S.C.

§ 12102(2)(A), which defines disability as “a physical or mental impairment that

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

Three elements must be established for a plaintiff to be considered “disabled”

under § 12102(2)(A). “First, the plaintiff must have a recognized impairment;

second, the plaintiff must identify one or more appropriate major life activities;

and third, the plaintiff must show that the impairment substantially limits one or

more of those activities.”     Doebele , 342 F.3d at 1129.

       The plaintiff must articulate with precision the impairment alleged
       and the major life activity affected by that impairment, and the court

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       is to analyze only those activities identified by the plaintiff. Whether
       the plaintiff has an impairment within the meaning of the ADA is a
       question of law for the court to decide. Whether the conduct affected
       is a major life activity for purposes of the Act is also a legal question
       for the court. However, ascertaining whether the impairment
       substantially limits the major life activity is a factual question for the
       jury.

Id. (quotation and citation omitted).

       The district court instructed the jury that plaintiff had recognized

impairments of “breast cancer, loss of her left breast and the resulting

disfigurement,” and that plaintiff had “identified one or more major life activities

affected by her impairments,” namely, “working, sleeping and lifting.” Aplt.

App., Vol. VII at 923 (instruction no. 16).

       Plaintiff contends on appeal that the district court erred in refusing to add

to this instruction a determination that “the loss of both breasts in a female and

the resultant impact upon her ability to engage in reproductive and sexual

activities constitute an impairment.” Aplt. Br. at 11. Where the legal accuracy

of a jury instruction is challenged, our review is de novo; where the challenge

concerns the district court’s decision to give a particular instruction, we review

for abuse of discretion.   Garrison v. Baker Hughes Oilfield Operations, Inc.       ,

287 F.3d 955, 963 (10th Cir. 2002).




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       We note initially that plaintiff’s counsel appears to confuse an

“impairment” with a “major life activity,” as defined in the ADA. A physical

impairment is defined as:

       Any physiological disorder, or condition, cosmetic disfigurement, or
       anatomical loss affecting one or more of the following body systems:
       neurological, musculoskeletal, special sense organs, respiratory
       (including speech organs), cardiovascular, reproductive, digestive,
       genito-urinary, hemic and lymphatic, skin, and endocrine[.]

29 C.F.R. § 1630.2(h)(1).

       Applying this definition, the district court found that plaintiff’s

impairments were breast cancer, loss of her left breast, and the resulting

disfigurement. The district court properly rejected plaintiff’s request to include

the loss of both breasts as an impairment because plaintiff’s second breast was

removed two years after her termination from Elitch.       See Selenke v. Med.

Imaging of Colo. , 248 F.3d 1249, 1257 n.4 (10th Cir. 2001) (considering only

impairments suffered prior to the adverse employment action).

       The remainder of plaintiff’s requested addition (“the resultant impact upon

her ability to engage in reproductive and sexual activities”), more accurately

describes a “major life activity.” “Merely having an impairment does not make

one disabled for purposes of the ADA. Claimants also need to demonstrate

that the impairment limits a major life activity.”     Toyota Motor Mfg., Kentucky,




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Inc. v. Williams , 534 U.S. 184, 195 (2002). “‘Major life activities’ . . . refers to

those activities that are of central importance to daily life.”   Id. at 197.

       Neither the district court nor Elitch questioned the premise that the ability

to reproduce or to engage in sexual conduct constitute “major life activities.”

See Bradgon v. Abbott , 524 U.S. 624, 638 (1998) (holding that “[r]eproduction

and the sexual dynamics surrounding it are central to the life process itself.”).

Rather, the district court ruled that there was no testimony, medical or otherwise,

that plaintiff’s breast cancer or loss of a breast had interfered with her ability to

reproduce or engage in sexual activities. Aplt. App., Vol. VI at 696, 697, 701,

707-08.

       It is insufficient for individuals attempting to prove disability status
       under this test to merely submit evidence of a medical diagnosis of
       an impairment. Instead, the ADA requires [claimants to offer]
       evidence that the extent of the limitation caused by their impairment
       in terms of their own experience is substantial. That the [ADA]
       defines “disability” “with respect to an individual,” 42 U.S.C.
       § 12102(2), makes clear that Congress intended the existence of
       a disability to be determined in such a case-by-case manner.

Toyota , 534 U.S. at 198 (quotations and citations omitted).

       It is this test that plaintiff fails. After carefully reviewing the record, we

conclude that plaintiff fails to meet the high threshold of demonstrating that the

district court abused its discretion in declining to issue the requested instruction.

We agree with the district court that there was no evidence showing that

plaintiff’s impairments interfered with any of the additional life activities she

                                              -6-
requested be included in this jury instruction.      See Coletti v. Cudd Pressure

Control , 165 F.3d 767, 776 (10th Cir. 1999) (“[w]hen a court rules as a matter of

law that a party introduced insufficient evidence to warrant the jury’s

consideration of a claim, it is perfectly within the court’s discretion to decline to

instruct the jury on the matter.”). The only evidence at all related to reproduction

was plaintiff’s testimony that she is of child-bearing age, and that breasts were

important for child-rearing and sexual contact. Aplt. App., Vol. V at 640.

Plaintiff did not testify that she was unable to reproduce or was restricted or

impaired in any way in her ability to become pregnant or bear a child, nor was

there any medical evidence to this effect. Further, plaintiff did not testify that she

had experienced any difficulties in her ability to engage in sexual conduct.

       Plaintiff’s counsel argued to the district court that one’s ability to be

sexually active or to breast feed a child would be impaired by the loss of a breast,

but hypothetical arguments of counsel are insufficient. The ADA requires

plaintiff to be “presently–not potentially or hypothetically–substantially limited

[in a major life activity] in order to demonstrate a disability.”   Sutton v. United

Air Lines, Inc ., 527 U.S. 471, 482 (1999).

       The definition of disability also requires that disabilities be evaluated
       “with respect to an individual” and be determined based on whether
       an impairment substantially limits the “major life activities of such
       individual.” § 12102(2). [W]hether a person has a disability under
       the ADA is an individualized inquiry.    See Bragdon v. Abbott ,
       524 U.S. 624, 641-642 . . . (1998) (declining to consider whether

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      HIV infection is a per se disability under the ADA); 29 C.F.R.
      § pt. 1630, App. § 1630.2(j) (“The determination of whether an
      individual has a disability is not necessarily based on the name or
      diagnosis of the impairment the person has, but rather on the effect
      of that impairment on the life of the individual.”).

Id. at 483; compare Keller v. Bd. of Educ. of City of Albuquerque     , 182

F. Supp. 2d 1148, 1155 (D. N.M. 2001) (finding breast cancer interfered with

plaintiff’s sexual conduct and reproduction based on unrefuted evidence her

medications made sexual intercourse painful), with       Treiber v. Lindbergh Sch.

Dist. , 199 F. Supp. 2d 949, 960 (E.D. Mo. 2002) (finding breast cancer did not

substantially interfere with reproduction and sexual conduct where plaintiff made

only conclusory allegations). On the record developed in this case, we find no

error in the district court’s rejection of these requested additions to the jury

instructions.

      Plaintiff also contends the district court erred in rejecting her requested

instruction that “suffering migraines for years constitutes an impairment.” Aplt.

Br. at 11. Plaintiff testified that she began suffering from migraine headaches

during her chemotherapy treatments and that she can have as many as three or

four migraine headaches a week. Aplt. App., Vol. III at 275. She does take

medication for her migraines, and she testified it relieves the symptoms of her

migraine headaches all but two or three times a month.       Id. at 275-77.




                                           -8-
       The district court rejected plaintiff’s request to include migraine headaches

as an identified impairment, stating that it was not an impairment “based on the

law.” Aplt. App., Vol. VI at 707. A few courts have recognized that an

individual’s migraines, given probative evidence demonstrating their severity

and functional impact, can constitute a physiological disorder which affects

a plaintiff’s neurological and vascular systems, and, therefore, be an impairment

as defined by the ADA.     Hendry v. GTE North, Inc. , 896 F. Supp. 816, 824

(N.D. Ind. 1995); Carlson v. InaCom Corp. , 885 F. Supp. 1314, 1320 (D. Neb.

1995); Dutton v. Johnson County Bd. of County Comm’rs        , 859 F. Supp. 498, 506

(D. Kan. 1994). Plaintiff’s testimony does show some level of impairment, but

neither her testimony nor any medical evidence in the record characterize

plaintiff’s migraines as causing significant functional impairment. Plaintiff did

state that some of her migraines can be so debilitating that she cannot get out of

bed and is sick to her stomach. She did not describe, however, any life activities

affected by her migraines. She testified only that she had to leave work at Elitch

early one day because of a migraine headache. Aplt. App., Vol. III at 276.

       Thus, plaintiff’s testimony does not show her migraines limit her ability

to engage in work or any other major life activity.    See Toyota , 534 U.S. at 197;

see also Agee v. Northwest Airlines, Inc.    , 151 F. Supp. 2d 890, 895-96

(E.D. Mich. 2001) (holding plaintiff’s migraines not a disability under the ADA


                                            -9-
because evidence showed migraines did not substantially limit his major life

activities). In order for the court to conclude that plaintiff’s migraines

substantially limited her major life activity of working, she would have to show

that her migraines render her unable to work in a broad class of jobs.     Sutton ,

527 U.S. at 491 (the “statutory phrase ‘substantially limits’ requires, at a

minimum, that plaintiffs allege they are unable to work in a broad class of jobs.”).

There was no such evidence here.

       Further, the determination whether an individual is disabled for ADA

purposes is to be made with reference to measures that mitigate the impairment.

Id. at 488. Here, plaintiff’s testimony was that, except for two or three times a

month, her medication controlled the symptoms of her migraines. We cannot say

on this record that plaintiff demonstrated that she was limited in any major life

activity at the time of the employment actions complained of, as required by

§ 12102(2)(A). Because plaintiff failed to present evidence that her migraines

limited any of her major life activities, the district court did not err in refusing to

include migraines as a limiting impairment in the jury instructions.

       The judgment of the district court is AFFIRMED.

                                                        Entered for the Court


                                                        Michael W. McConnell
                                                        Circuit Judge


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