                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          JUL 2 2001
                           FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    GEORGE E. YESKE,

               Plaintiff-Appellant,

    v.                                                  No. 00-1283
                                                  (D.C. No. 98-WM-2516)
    KING SOOPERS, INC., Colorado                         (D. Colo.)
    Corporation; JOHN NEIL, individually
    and as Chief Engineer of King
    Soopers, Inc.; KATHY ALLEN,
    individually and as Plant Manager of
    King Soopers, Inc.; STEPHEN
    SOLLNER, individually and as
    Assistant Plant Manager of King
    Soopers, Inc.; STEPHANIE
    BOUKNIGHT, Employee Benefits
    Manager of King Soopers, Inc.,

               Defendants-Appellees.


                           ORDER AND JUDGMENT           *




Before EBEL , PORFILIO , and KELLY , Circuit Judges.




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      This order and judgment is not binding precedent, except under the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

       Plaintiff George Yeske brought this action against his former employer,

King Soopers, Inc., and some of its employees, and against his union local and

some of its officials. He asserted claims for violations of the Americans with

Disabilities Act and the Racketeer Influenced and Corrupt Organizations Act,

breach of contract, and negligent infliction of emotional distress. Yeske

stipulated to a dismissal with prejudice of the union defendants. Adopting the

magistrate judge’s report and recommendation, the district court granted the

remaining defendants’ motion for summary judgment. Yeske appeals.

       Defendants have moved to dismiss the appeal on two grounds. First, they

contend it should be dismissed because Yeske failed to file his opening brief

within the time limits prescribed by   Fed. R. App. P. 31(a)(1). We do not grant

motions to dismiss for this reason.    See 10th Cir. R. 27.2(A)(1) (stating that party

may file motion to dismiss appeal only on bases of lack of jurisdiction,

supervening change in law or mootness, or need for additional district court

proceedings); Mullen v. Household Bank-Federal Savings Bank         , 867 F.2d 586,

588 (10th Cir. 1989). Second, they contend we lack jurisdiction over the appeal


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because the district court granted their summary judgment motion on June 19,

2000, but Yeske filed his notice of appeal on July 20, 2000, which they claim is

untimely under Rule 4(a)(1)(A). However, Rule 4(a)(1)(A)’s thirty-day period

runs from the date the court entered judgment on a separate document pursuant to

Fed. R. Civ. P. 58, Jenkins v. Burtzloff , 69 F.3d 460, 461-62 (10th Cir. 1995),

which was on June 28. We therefore have jurisdiction and turn to the merits.

       We review a district court’s grant of summary judgment de novo.          Mitchell

v. City of Moore , 218 F.3d 1190, 1197 (10th Cir. 2000). Because Yeske is

proceeding pro se, as he did in the district court, we construe his pleadings

liberally. Haines v. Kerner , 404 U.S. 519, 520-21 (1972). “Despite the liberal

construction afforded pro se pleadings, the court will not construct arguments or

theories for the plaintiff in the absence of any discussion of those issues.”     Drake

v. City of Fort Collins , 927 F.2d 1156, 1159 (10th Cir. 1991) (citation omitted).

Applying these rules, we interpret Yeske’s appellate brief to challenge only the

district court’s rejection of his ADA claim. Although he separately contends that

defendants’ counsel violated ethical standards, he provides no indication how this

prejudiced him, and we will not further consider this allegation.

              To establish a prima facie case of discrimination under the
       ADA, Plaintiff must first establish that he is “disabled” within the
       meaning of the statute. The ADA defines disability as “(A) a
       physical or mental impairment that substantially limits one or more
       of the major life activities of [an] individual; (B) a record of such


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      impairment; or (C) being regarded as having such an impairment.”
      42 U.S.C. § 12102(2).

Lusk v. Ryder Integrated Logistics   , 238 F.3d 1237, 1239 (10th Cir. 2001) (citation

omitted). Yeske claims he is disabled due to a shoulder injury which prevents

him from climbing a ladder and restricts him from lifting more than ten pounds

with his left arm. In granting summary judgment to defendants, the district court

determined that these restrictions were not substantially limiting and that Yeske

was therefore not disabled under the ADA.

      On appeal, Yeske does not challenge this basis for finding he was not

disabled, but instead contends he was disabled because defendants regarded him

as such. See 42 U.S.C. § 12102(2)(C). Although the district court did not address

this contention, we can liberally construe his pleadings as having raised it.

Nonetheless, we find it without merit. The only evidence to which Yeske referred

in support of this argument was the fact that defendants placed him on a medical

leave of absence pending identification of a position he could perform given his

restrictions. This shows merely that defendants recognized his restrictions and

treated him accordingly. By itself, it does not show that they regarded him as

disabled. Lusk , 238 F.3d at 1241-42.




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      The judgment of the district court is AFFIRMED. The mandate shall issue

forthwith.


                                                Entered for the Court



                                                Paul J. Kelly, Jr.
                                                Circuit Judge




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