                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                              JAN 13 1999
                              FOR THE TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

    KENNETH R. JOHNSON,

                Plaintiff-Appellant,

    v.                                                      No. 98-6088
                                                      (D.C. No. CIV-97-219-T)
    THE CITY OF MIDWEST CITY,                               (W.D. Okla.)

                Defendant-Appellee.


                              ORDER AND JUDGMENT            *




Before BRORBY , BRISCOE , and LUCERO , Circuit Judges.



         Plaintiff filed this action against his former employer, Midwest City,

alleging violations of the Americans with Disabilities Act (ADA), 42 U.S.C. §§

12101-12213.    1
                    (Plaintiff’s complaint also included allegations of violation of

Oklahoma public policy, but he does not pursue this claim on appeal.) The


*
      This order and judgment is not binding precedent, except under the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.
1
       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.
district court granted summary judgment in favor of the City and we review that

grant de novo. See Lowe v. Angelo’s Italian Foods, Inc.     , 87 F.3d 1170, 1173

(10th Cir. 1996). In doing so, we apply the same legal standard used by the

district court: we affirm if there is no genuine issue as to any material fact and

the City is entitled to judgment as a matter of law.   See id. Guided by this

standard, we affirm.

       Plaintiff was employed by the City     as a laborer in 1986, and was promoted

to crew chief in 1992. In June 1993, plaintiff was involved in an automobile

accident while on the job. As a result of injuries he received in the accident,

plaintiff underwent surgery for a torn rotator cuff and joint derangement. After

the surgery, plaintiff was totally disabled between October 1993, and mid-

December 1993. Plaintiff’s physician then released him to return to work with

varying restrictions on lifting. Following at least one additional surgery and a

final follow-up visit with his physician regarding the rotator cuff repair in August

1996, plaintiff was discharged from care as to that injury with a permanent

restriction proscribing all overhead lifting with the right shoulder. The City

offered plaintiff another position in the sanitation division conditioned on his

submission of a medical release from his doctor stating that he could meet the

physical demands of that position. Plaintiff neither submitted the release nor

applied for any other positions with the City. Thereafter, the City terminated


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plaintiff’s employment as a laborer because he could no longer perform the

physical demands of the job. The City again emphasized that plaintiff could

apply for any position for which he was qualified.

       Like the trial court, we look to 42 U.S.C. § 12112(a), and the precedents

interpreting the statute.

       To maintain a claim for wrongful discharge under the ADA, a
       plaintiff must demonstrate (1) that [he] is a disabled person within
       the meaning of the ADA; (2) that [he] is able to perform the essential
       functions of the job with or without reasonable accommodation; and
       (3) that the employer terminated [him] because of [his] disability.

Lowe , 87 F.3d at 1173. The district court found that plaintiff was not a disabled

person within the meaning of the ADA, and granted summary judgment on that

basis. We may affirm the grant of summary judgment on any basis “for which

there is a record sufficient to permit conclusions of law.”     United States v.

Sandoval , 29 F.3d 537, 542 n.6 (10th Cir. 1994). Reviewing the record, we

conclude that because the plaintiff is unable to perform the essential functions of

the job either with or without reasonable accommodation plaintiff has not shown

that he is a “qualified individual” under the ADA. We affirm the grant of

summary judgment in favor of defendants on that basis.

       Determination of whether plaintiff is a “qualified individual” under the

ADA requires a two-part inquiry. The first step is to determine whether plaintiff

could perform the essential functions of the job.      See Aldrich v. Boeing Co. , 146


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F.3d 1265, 1271 (10th Cir. 1998),       petition for cert. filed   (U.S. Nov. 23, 1998)

(No. 98-859). If he cannot, we must then “determine whether any reasonable

accommodation by the [City] would enable him to perform those functions.”                 Id.

Because the plaintiff bears the ultimate burden of proving he is a “qualified

individual” under the ADA,        see White v. York Int’l Corp. , 45 F.3d 357, 361 (10th

Cir. 1995), he must produce sufficient evidence to make a prima facie showing

that accommodation is possible, and then the burden shifts to the City “to present

evidence of its inability to accommodate.”           Id. Plaintiff is then obligated to rebut

the City’s evidence.    See id.

       The City produced evidence that lifting overhead is an essential function of

plaintiff’s former job as laborer in its utilities department and established that the

job description for such position requires overhead lifting. Appellant’s App. at

44. Additionally, both the city manager and the head of the department testified

overhead lifting was essential to the job.       See id. at 123; 229-30; 232-33; 235;

236-37. The plaintiff failed to counter the City’s evidence on point, thus

“[a]lthough ordinarily a fact question to be decided on a case-by-case basis,

plaintiff[] ha[s] presented no evidence to rebut the conclusion that [overhead

lifting] is essential to the [laborer] job” and his claim fails.      Milton v. Scrivner,

Inc. , 53 F.3d 1118, 1124 (10th Cir. 1995). That being the situation, we consider




                                               -4-
whether plaintiff has demonstrated a genuine issue of fact regarding his ability to

perform the essential functions with reasonable accommodation.     See id.

      Plaintiff suggested that reapportioning the overhead lifting responsibilities

to the other two crew members was a reasonable accommodation. To the

contrary, the City

      is not required by the ADA to reallocate job duties in order to change
      the essential function of a job.  See C.F.R. Pt. 1630 App. §1630.2(o).
      An accommodation that would result in other employees having to
      work harder or longer hours is not required.   See 29 C.F.R.
      §1630.2(p)(2)(v)(impact to other employees on their ability to do
      their duties is a relevant factor in determining the reasonableness of
      an accommodation).

Id. at 1124-25 (further citation omitted). Further, the record shows the City

attempted to accommodate plaintiff by finding another position for which he was

qualified. The City was prepared to place plaintiff in a sanitation department

position if he provided a release from his physician. Plaintiff did not provide the

documentation, and has not met his burden to show he is a “qualified individual”

entitled to protection of the ADA.

      AFFIRMED.

                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge



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