                       UNITED STATES COURT OF APPEALS

                                    TENTH CIRCUIT



 TERESITA PACK,

        Plaintiff-Appellant,

            v.                                             No. 97-7120

 KMART CORPORATION, a Michigan
 Corporation; STEVE NICHOLAS, an
 individual,

       Defendants-Appellees.
 ___________________

 EQUAL EMPLOYMENT OPPORTUNITY
 COMMISSION,

        Amicus Curiae.


                                         ORDER
                                  Filed February 4, 1999


Before BRORBY, BARRETT, and EBEL, Circuit Judges.



       Appellant’s petition for rehearing is denied.

       The suggestion for rehearing en banc was transmitted to all of the judges of the

court who are in regular active service as required by Fed. R. App P. 35. As no member

of the panel and no member in regular active service on the court requested that the court

be polled, the suggestion is also denied.
       However, in order to clarify this court’s opinion filed on December 29, 1998, the

original opinion is withdrawn. The court’s clarified opinion is attached to this order and

is filed on this date.



                                                 Entered for the Court,
                                                 Patrick Fisher, Clerk of Court


                                                 By:

                                                        Keith Nelson
                                                        Deputy Clerk




                                           -2-
                                                                                  F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                                          PUBLISH
                                                                                   FEB 4 1999
                          UNITED STATES COURT OF APPEALS
                                                                             PATRICK FISHER
                                      TENTH CIRCUIT                                    Clerk



 TERESITA PACK,

        Plaintiff-Appellant,

            v.                                           No. 97-7120

 KMART CORPORATION, a Michigan
 Corporation; STEVE NICHOLAS, an
 individual,

       Defendants-Appellees.
 ___________________

 EQUAL EMPLOYMENT OPPORTUNITY
 COMMISSION,

        Amicus Curiae.




                           Appeal from United States District Court
                            for the Eastern District of Oklahoma
                                  (D.C. No. 96-CV-643-B)


Steven A. Novick, Tulsa, Oklahoma (Douglas L. Inhofe and Mark A. Waller, Inhofe Jorgenson
& Balman, Tulsa, Oklahoma, on the briefs), for the appellant.

Jon E. Brightmire, Doerner, Saunders,, Daniel & Anderson, L.L.P., Tulsa Oklahoma, (Kristen L.
Brightmire, with him on the brief), for the appellee.

Geoffrey L. Carter, Attorney, United States Equal Employment Opportunity Commission, (C.
Gregory Stewart, General Counsel, Phillip B. Sklover, Associate General Counsel, Carolyn L.
Wheeler, Assistant General Counsel, with him on the brief), for amicus curiae United States
Equal Employment Opportunity Commission.
Before BRORBY, BARRETT, and EBEL, Circuit Judges.


BARRETT, Senior Circuit Judge.


          Teresita Pack (Pack) appeals the district court’s grant of judgment as a matter of law,

pursuant to Fed. R. Civ. P. 50, in favor of Kmart Corporation (Kmart) on her Americans with

Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., claim.1 For the following reasons, we

affirm.

                                              Background

          In 1976, Pack began her employment with Kmart in Muskogee, Oklahoma, as a dishwasher

in the cafeteria. Over the next 18 years, she worked in various positions throughout the store with

an excellent record. In 1987, Pack transferred to a pharmacy technician position. In late 1993, Pack

began seeing her family physician, Dr. Kuykendall, for stress-related physical and emotional

problems. Dr. Kuykendall in turn referred her to Dr. Koduri, a psychiatrist, who diagnosed Pack

with major depression, moderate to severe, on July 8, 1994. (App. Vol. II at 529-30.)

          Also in late 1993, Pack’s performance at work began to decline. She made technical errors

in the pharmacy, including mislabeling prescriptions and incorrectly entering prescription data into

the pharmacy computer. On June 22, 1994, Pack took a medical leave of absence from work until

August 8, 1994. (App. Vol. II at 500.) On August 12, 1994, Pack received her annual evaluation,

which was an unsatisfactory rating. Id. at 499. Her unsatisfactory rating was based on her errors in

the pharmacy and poor concentration. Id. On September 9, 1994, Pack took a second medical leave

          1
              Pack does not appeal from the district court’s grant of judgment as a matter of law
in favor of Kmart and defendant Steve Nicholas on her intentional infliction of emotional distress
claims.

                                                  -2-
of absence at the recommendation of Dr. Koduri. Id. at 501. Her leave was extended until January

5, 1995, at which time she returned to work with a note from Dr. Koduri restricting her to 20 hours

her first week, with no restrictions thereafter.2 Id. at 502. On January 11, 1995, Dr. Koduri

recommended restricting Pack’s hours to 32 hours per week for the next two weeks.          Id. at 503.

Upon her return, Pack continued to make the same type of prescription errors. On February 2, 1995,

Kmart discharged Pack based on her continued errors as a pharmacy technician. See (App. Vol. I

at 154.)

       On December 11, 1996, Pack filed a complaint against Kmart alleging, inter alia, that Kmart

violated the ADA when it terminated her employment on February 2, 1995. (Appellee’s Supp. App.

at 4.) Pack alleged that she had a “nervous breakdown” in May, 1994 after which she requested a

transfer as an accommodation of her disability   3
                                                     and that Kmart failed to transfer her out of her

pharmacy technician position or provide other reasonable accommodation. Id. See (App. Vol. I at

12.)

       On September 17, 1997, after the close of all evidence, the district court granted Kmart’s oral

Rule 50 motion for judgment as a matter of law. (App. Vol. II at 489.) The district court found that

“periodic sleep deprivation” and “the inability to concentrate,” as set forth, were not major life



       2
                Although the note from Dr. Koduri restricted her to 20 hours, Pack worked 40
hours her first week back in January, 1995. It is unclear, however, whether this was due to
Pack’s desire to work more hours and, thus, earn more or to Kmart’s demands. See (App. Vol. I
at 90-91; Vol. II at 313-14.)
       3
                In her complaint, Pack identifies her “disability” as “the inability to tolerate the
stressful environment created by Defendant Nicholas,” a Kmart pharmacist and one of her
supervisors. (Appellee’s Supp. App. at 4 ¶20.) However, at trial the evidence demonstrated that
Pack’s alleged impairment was major depression, moderate to severe. See (App. Vol. II at 529-
30.)

                                                 -3-
activities covered by the ADA. Id. The district court also found that: the evidence in this case

showed Pack suffered from “periodic sleep deprivation on occasion,” id.; her evidence of her

inability to concentrate was “almost exclusively limited to job performance in a specific job as a

pharmacy technician and the evidence does not show that [it] interferes with other aspects of her life

. . .,” id.; and even assuming sleep and concentration are major life activities, Pack “in this case has

not demonstrated that her impairment of depression substantially limits either her concentration or

her ability to sleep,” id. at 490. The district court determined that:

       based on this record there is insufficient evidence to show an inability to perform the
       major life activities of sleeping and concentration. Plaintiff has offered evidence that
       her sleep has been disrupted on occasion, but it was not shown that it was permanent.
       I believe the evidence, at best, shows it was on a sporadic basis. Plaintiff has further
       not offered any evidence that her depression has prevented her from performing
       totally either sleep or concentration and, in fact, the evidence is to the contrary that
       the plaintiff has concentrated in other areas of her life outside of her employment in
       the pharmacy at Kmart, and further that there is certainly evidence that she is able to
       sleep even though there may be -- the sleep may be disrupted occasionally.

Id. at 490-91.

       On appeal, Pack contends that the district court erred: (1) in determining that sleep and

concentration are not major life activities, and (2) in concluding that reasonable jurors could not find

her depression substantially limited her major life activities of sleep and concentration.

       We review the district court’s grant of a motion for judgment as a matter of law de novo,

applying the same standard as the district court. Mason v. Oklahoma Turnpike Auth., 115 F.3d 1442,

1450 (10th Cir. 1997) (citations and quotations omitted). Judgment as a matter of law is appropriate

“[i]f during a trial by jury a party has been fully heard on an issue and there is no legally sufficient

evidentiary basis for a reasonable jury to find for that party . . ..” Fed. R. Civ. P. 50(a)(1). “[A]

court may grant the motion only if the evidence points but one way and is susceptible to no


                                                 -4-
reasonable inferences which may support the opposing party’s position.” Davis v. United States

Postal Serv., 142 F.3d 1334, 1339 (10th Cir. 1998) (internal quotation omitted.) On review, we

examine the evidence in the light most favorable to Pack, extending to her the benefit of all

reasonable inferences. Id.

                                             Discussion

       The ADA prohibits discrimination “against a qualified individual with a disability because

of the disability of such individual in regard to job application procedures, the hiring, advancement,

or discharge of employees, employee compensation, job training, and other terms, conditions, and

privileges of employment.” 42 U.S.C. § 12112(a). See Bolton v. Scrivner, Inc., 36 F.3d 939, 942

(10th Cir. 1994) (quoting 42 U.S.C. § 12112(a)), cert. denied, 513 U.S. 1152 (1995). Discrimination

under the ADA includes “not making reasonable accommodations to the known physical or mental

limitations of an otherwise qualified individual with a disability who is an applicant or employee,

unless . . . the accommodation would impose an undue hardship . . ..” 42 U.S.C. § 12112(b)(5)(A).

A “qualified individual with a disability” is “an individual with a disability who, with or without

reasonable accommodation, can perform the essential functions of the employment position that such

individual holds or desires.” 42 U.S.C. § 12111(8). See White v. York Int’l Corp., 45 F.3d 357, 360

(10th Cir. 1995) (quoting 42 U.S.C. § 12111(8)).

       To establish a claim under the ADA, Pack must show that: (1) she is a disabled person within

the meaning of the ADA; (2) she is qualified, i.e., able to perform the essential functions of the job,

with or without reasonable accommodation (which she must describe); and (3) Kmart discriminated




                                                 -5-
against her in its employment decision (failure to transfer) because of her alleged disability.4 See

Siemon v. AT&T Corp., 117 F.3d 1173, 1175 (10th Cir. 1997); White, 45 F.3d at 360-61.

       The ADA defines a “disability” as “(A) a physical or mental impairment that substantially

limits one or more of the major life activities of such individual; (B) a record of such an impairment;

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

requirement that disability determinations be made “with respect to the individual,” contemplates

an individualized, a case-by-case determination of whether a given impairment substantially limits

a major life activity of the individual. Sutton v. United Airlines , 130 F.3d 893, 897-98 (10th Cir.

1997) (collecting cases), petition for cert. filed, 66 U.S.L.W. 3783 (U.S. Jun. 1, 1998) (No. 97-1943).

       Pack alleged she was “disabled” within the meaning of subparagraph (A) because her

depression is a mental impairment that substantially limits her major life activities of sleeping and

concentration. Therefore, Pack was required to establish (1) that her depression is a “physical or

mental impairment;” and (2) if her depression is an impairment, that it “substantially limits one or

more of [her] major life activities.” See 42 U.S.C. § 12102(2)(A).

       In its motion for judgment as a matter of law, Kmart conceded that depression is a mental

impairment. (App. Vol. II at 375.) Therefore, for the purposes of this appeal, we assume that Pack’s

major depression, moderate to severe, constitutes a mental impairment within the meaning of the

ADA. We must now determine whether Pack’s mental impairment, major depression, “substantially

limit[ed] one or more of [her] major life activities.” See 42 U.S.C. § 12102(2)(A); Sutton, 130 F.3d



       4
                Although Pack argued Kmart discriminated against her in its failure to transfer her
out of her pharmacy technician position, we will not consider this issue in view of our holding
that, on the evidence presented at trial, Pack cannot demonstrate that she is a disabled person
under the ADA. See infra Discussion.

                                                 -6-
at 900.

                                        A. Major Life Activity

          Pack and the Equal Employment Opportunity Commission (EEOC), arguing as amicus

curiae, contend that sleep and concentration are major life activities. Pack asserts that sleep is

“clearly” a major life activity as it is as significant as any activity listed in the EEOC’s regulations

and a basic activity that is performed with little or no difficulty by the average person in the

population. (Appellant’s Opening Brief at 15.) Pack reasons that concentration is also a major life

activity because it is required, to some extent, in most daily activities. In addition, Pack relies on

the EEOC Guidance on Psychiatric Disabilities And the Americans With Disabilities Act , EEOC

Compliance Manual (BNA) No. 59, at E-2 (Mar. 27, 1997), which lists sleeping and concentrating

as major life activities limited by mental impairments.5 Id. at 16.

          A “major life activity” is a basic activity that the average person in the general population

can perform with little or no difficulty. Major life activities include, but are not limited to,

“functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking,

breathing, learning, and working.” 29 C.F.R. § 1630.2(i); Sutton, 130 F.3d at 900. See 29 C.F.R.

§ 1630, App. § 1630.2(i)(including sitting, standing, lifting, and reaching). “[T]he touchstone for

determining an activity’s inclusion under the statutory rubric is its significance.” Bragdon v. Abbott,

118 S.Ct. 2196, 2205 (1998) (internal quotation omitted). See Reeves v. Johnson Controls World

Servs., Inc., 140 F.3d 144, 151 (2d Cir. 1998) (“The term ‘major life activit[y],’ by its ordinary and

natural meaning, directs us to distinguish between life activities of greater and lesser significance.”).


          5
                While the EEOC’s guidance may be entitled to some consideration in our
analysis, it does not carry the force of law and is not entitled to any special deference. Sutton,
130 F.3d at 899 n.3.

                                                  -7-
        In deciding whether a particular activity is a “major life activity,” we ask whether that activity

is significant within the meaning of the ADA, rather than whether that activity is important to the

particular individual. “We do not think that such major life activities as seeing, hearing, or walking

are major life activities only to the extent that they are shown to matter to a particular ADA

plaintiff.” Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 642 (2d Cir. 1998) (quoting

Reeves, 140 F.3d at 151-52). See Bragdon, 118 S.Ct. at 2204-05 (wherein the Court determined that

reproduction is a major life activity without considering whether reproduction was an important part

of the individual respondent’s life).

        We hold that sleeping is a major life activity, but concentration is not. Sleeping is a basic

activity that the average person in the general population can perform with little or no difficulty,

similar to the major life activities of walking, seeing, hearing, speaking, breathing, learning, working,

sitting, standing, lifting, and reaching.      See Colwell, 158 F.3d at 643 (“. . . sleep, which is

undoubtedly a major life activity.”).       However, concentration is not itself a major life activity.

Concentration may be a significant and necessary component of a major life activity, such as

working, learning, or speaking, but it is not an “activity” itself.

                                          B. Substantially Limits

        We now consider whether Pack’s mental impairment/depression “substantially limits” her

in the major life activity of sleeping.

        In order for a physical or mental impairment to be “substantially limiting,” the individual

must be:

               (i)    Unable to perform a major life activity that the average person in the
        general population can perform; or



                                                   -8-
              (ii)   Significantly restricted as to the condition, manner or duration under
       which an individual 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); Sutton, 130 F.3d at 900.

       In determining whether an individual is substantially limited in a major life activity, three

factors should be considered: (1) the nature and severity of the impairment; (2) the duration or

expected duration of the impairment; and (3) the permanent long term impact, or the expected

permanent or long term impact of or resulting from the impairment. 29 C.F.R. § 1630.2(j)(2);

Sutton, 130 F.3d at 900. In addition, we evaluate whether a physical or mental impairment is

substantially limiting in a major life activity while taking into consideration any mitigating or

corrective measures utilized by the individual, such as medications. Sutton, 130 F.3d at 902.

       Thus, in order to establish that she was substantially limited in the major life activity of

sleeping, Pack was required to establish that she was unable to sleep or was significantly restricted

as to the condition, manner, or duration of her ability to sleep as compared to the average person in

the general population, taking into consideration the three factors and any mitigating or corrective

measures. See 29 C.F.R. § 1630.2(j)(1)(i) and (ii); Sutton, 130 F.3d at 900-02. Pack did not allege

that she was completely unable to sleep. Hence, we are concerned with Pack’s ability to sleep as

compared to the average person in the general population.

       At trial, Pack testified that in January, 1995, “[s]ometimes I would go off into -- finally go

to sleep and I would wake up shaking, crying, nervous, upset. I would be up for two or three hours

before I could go back to sleep again. Sometimes I wouldn’t get but maybe two, three hours at the

most sleep all night long. [sic] I would toss and turn all night long.” (App. Vol. II at 316.) The only



                                                 -9-
other evidence of Pack’s ability or inability to sleep is found in Dr. Koduri’s medical notes. On July

8, 1994, in her initial consultation with Dr. Koduri, Pack complained of “decreased sleep with

increased latency, moving frequently in her sleep, [and] not feeling fresh when waking up in the

morning, . . ..” Id. at 529. On July 11, 1994, Dr. Koduri noted that Pack was “[s]till having

significant problem with sleep, up until 2 or 3 in the morning.” Id. at 504. On July 22, 1994, Dr.

Koduri noted Pack “says that she was feeling extremely drowsy, sleepy all the time.” Id. at 505. On

July 29, 1994, Dr. Koduri noted Pack “doesn’t feel as drowsy as she used to, her sleep is getting

better, and even her husband has commented on her improvement.” Id. at 506. On August 17, 1994,

Dr. Koduri cut back Pack’s evening medication because it “makes her too sleepy.” Id. at 508. There

are no further notations regarding sleep until November 21, 1994, when Dr. Koduri noted Pack had

been having erratic sleep patterns and discussed with her the need for a structured sleep pattern. Id.

at 517. Finally, on December 5, 1994, Dr. Koduri noted Pack’s “sleep is improving a little bit.” Id.

at 518.

          While the evidence showed Pack had episodes of sleep disruption and/or waking without

feeling rested during 1994 and January 1995, there is no indication that her sleep problems were

severe, long term, or had a permanent impact.6 Additionally, Dr. Koduri was able to generally

control Pack’s sleep problems with medication, even going too far in some instances, resulting in

making her too sleepy or drowsy. See id. at 505 & 508. Pack failed to satisfy her burden to present

evidence of her impairment and the extent to which the impairment limited her major life activity



          6
               We note that the EEOC agrees that “[s]leeping is not substantially limited just
because an individual has some trouble getting to sleep or occasionally sleeps fitfully.” EEOC
Guidance on Psychiatric Disabilities And the Americans With Disabilities Act, EEOC
Compliance Manual (BNA) No. 59, at E-2 n.16 (Mar. 27, 1997). (App. Vol. II at 532.)

                                                - 10 -
of sleeping. Therefore, the district court did not err in determining that Pack failed to show her

depression substantially limited her in the major life activity of sleep.

                                             Conclusion

       We hold that sleep is a major life activity, but concentration itself is not. We further hold that

Pack failed to establish she was substantially limited in the major life activity of sleeping. Thus,

Pack is not disabled within the meaning of the ADA. We AFFIRM the district court’s grant of

judgment as a matter of law in favor of Kmart on Pack’s ADA discrimination claim.7

       AFFIRMED.




       7
                 Additionally, we note that Pack failed to present any evidence regarding the
ability to sleep of the average person in the general population which would have significantly
aided the trier of fact in a situation like this where there is a dearth of other evidence. See e.g.
Colwell, 158 F.3d at 644 (“Difficulty sleeping is extremely widespread. Colwell made no
showing that his affliction is any worse than is suffered by a large portion of the nation’s adult
population.”).

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