                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               APR 20 1999
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 DENISE ANDERSON,

          Plaintiff - Appellant,
 v.                                                         No. 97-3388
                                                       (D.C. No. 96-CV-2090)
 GENERAL MOTORS                                          (District of Kansas)
 CORPORATION,

          Defendant - Appellee.




                             ORDER AND JUDGMENT *


Before KELLY, McKAY and LUCERO, Circuit Judges.



      Denise Anderson appeals the district court’s grant of summary judgment for

defendant General Motors Corporation (“GM”) on her discrimination claim under

the Americans with Disabilities Act (“ADA”). We have jurisdiction pursuant to

28 U.S.C. § 1291, and affirm.

      Appellant Anderson began working at GM in 1982. Until 1988, her job

was limited to applying sealant to the seams of automobile bodies. Beginning in

      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
1988, GM, as part of its collective bargaining agreement, required all of its

employees at Anderson’s plant to perform various jobs as members of teams.

Complaining that she was unable to learn her new tasks, and claiming work-

related stress, Anderson sought medical treatment in March 1988. GM thereupon

placed Anderson on a leave of absence.

       In 1989, Anderson sued GM, alleging violation of the Vocational

Rehabilitation Act and intentional infliction of emotional distress. The district

court summarily dismissed the Rehabilitation Act claim, and ordered a directed

verdict for GM on the state law tort claim. Anderson unsuccessfully appealed the

district court’s rulings.

       In August 1992, GM recalled Anderson to work. But on the same day she

returned to work, GM informed her that the recall was a mistake because she was

still on a leave of absence. In 1995, Anderson again sued GM, 1 alleging

intentional infliction of emotional distress, and claims for discrimination and

unlawful retaliation under the ADA. The district court granted summary

judgment for GM on the ADA discrimination and state law emotional distress

claims. The jury returned a verdict for GM on the ADA retaliation claim.

Anderson now appeals the district court’s grant of summary judgment on her


       1
        In 1996, appellant filed another suit against GM containing essentially the same
allegations as her 1995 suit. She also separately sued the United Auto Workers Local 31.
The district court ordered all three cases consolidated.

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disability discrimination claim. She does not appeal her retaliation and state law

tort claims.

      We review de novo a grant of summary judgment, applying the same legal

standard as that used by the district court. See Phelps v. Hamilton, 122 F.3d

1309, 1317 (10th Cir. 1997). Summary judgment is proper if, viewing the

evidence in the light most favorable to the nonmoving party, we conclude that

there is no genuine issue of material fact, and the moving party is entitled to

summary judgment as a matter of law. See Wolf v. Prudential Ins. Co., 50 F.3d

793, 796 (10th Cir. 1995).

      To prevail in a disability discrimination case, the claimant must show that

(1) she is a disabled person within the meaning of the ADA; (2) she can perform

the essential functions of her job with or without reasonable accommodation; and

(3) she suffered an adverse employment action because of her disability. See

Lowe v. Angelo’s Italian Foods, Inc., 87 F.3d 1170, 1173 (10th Cir. 1996). Thus,

to survive summary judgment in this case, Anderson must show, as a threshold

matter, that she is a disabled person within the meaning of the ADA. 2


      2
        Appellant claims that GM regarded her as disabled within the meaning of 42
U.S.C. § 12102(2) because “[i]n order to keep its defense contracts, GM was required to
hire handicapped persons” like her. Appellant’s Br. at 1. Thus, GM “specifically hired
[her] because she was disabled.” Id. at 25. GM’s classification of Anderson as disabled
for hiring purposes is not dispositive of whether her condition—or GM’s perception of
her condition—meets the definition of “disability” under 42 U.S.C. § 12102(2). See
Richards v. Topeka, — F.3d — , 1999 WL 159962 (10th Cir. Mar. 24, 1999) at *2-3

                                           -3-
      For purposes of the ADA, a person is disabled if he or she has a physical or

mental impairment that substantially limits one or more of his or her major life

activities. See 42 U.S.C. § 12102(2). The district court found, and GM concedes,

that Anderson has a mental impairment. She suffers from a learning disability

and mild mental retardation. Thus, the issue is whether Anderson’s impairment

substantially limits one or more of her major life activities. See Pack v. Kmart

Corp., 166 F.3d 1300, 1304 (10th Cir. 1999).

      Before the district court, Anderson expressly argued that she is

substantially limited in the major life activities of working and taking care of her

business affairs. On appeal, she continues to argue that she is limited in the

major life activity of working. But she also argues for the first time that she is

disabled in the major life activity of learning. 3

      Although learning is certainly a major life activity under the ADA, see 29

C.F.R. § 1630.2(I), we decline to address this argument because it was not

presented to the district court. See Tele-Communications, Inc. v. Commissioner,

12 F.3d 1005, 1007 (10th Cir. 1993) (stating that “[t]he general rule is that an

appellate court will not consider an issue raised for the first time on appeal.”).


(holding that classification of a condition as a disability in a collective bargaining
agreement does not implicate the “regarded as” branch of 42 U.S.C. § 12102(2) unless the
condition substantially limits one or more major life activities).
      3
        On appeal, Anderson does not present an argument, as she did below, that she is
limited in the major life activity of “taking care of her business affairs.”

                                           -4-
         In her opposition to GM’s summary judgment motion, Anderson

specifically restricted her arguments as to whether her disability substantially

limits one or more major life activities to the major life activity of working and

taking care of her own business affairs. See II R. at 320-21 (Plaintiff’s Response

to Motion for Summary Judgment) (“Denise Anderson’s disability limits two

major life activities, to wit, her ability to take care of her own business and the

major life activity of working.”). The district court, in its memorandum and order

granting summary judgment on Anderson’s ADA discrimination claim, addressed

precisely those two major life activities. See III R. at 575 (“Plaintiff argues that

her mental impairments substantially limited her major life activities of working

and of taking care of her ‘business affairs.’”). Because Anderson clearly chose to

argue below only the major life activities of working and tending to her business

affairs, we decline to consider an alternative theory presented for the first time.

See Tele-Communications Inc. v. Commissioner, 104 F.3d 1229, 1233 (10th Cir.

1997).

         We also conclude that Anderson fails to show that she is substantially

limited in the major life activity of working. She has the burden of proving that

her impairment disqualified her from performing a “class of jobs” or a “broad

range of jobs in various classes.” 29 C.F.R. § 1630.2(j)(3)(I); Siemon v. AT&T

Corp., 117 F.3d 1173, 1176 (10th Cir. 1997). In deciding whether Anderson


                                           -5-
carries this burden, we look, inter alia, to the “the number and types of jobs

utilizing similar training, knowledge, skills or abilities, within that geographical

area, from which the individual is also disqualified because of the impairment.”

29 C.F.R. § 1630.2(j)(3)(ii)(B).

      Anderson argues that she can only perform a single-function job like the

sealant application job she originally had at GM. As the district court found,

however, Anderson produced no evidence to show that she is disqualified from

other jobs within the area requiring the same skills and abilities she brought to her

GM job. We have held that summary judgment may be appropriate when a

plaintiff fails to produce evidence pertaining to “the geographical area to which

[she] has access, or the number and type of jobs demanding similar training from

which [she] was disqualified.” Bolton v. Scrivner, Inc., 36 F.3d 939, 944 (10th

Cir. 1994).




      The district court’s grant of summary judgment is, therefore, AFFIRMED. 4


      4
        Anderson has moved to strike GM’s letters submitting supplemental authorities
because the letters contained argument. See Fed. R. App. P. 28(j) (“the letter shall
without argument state the reasons for the supplemental citations”). We agree that GM

                                          -6-
                                          ENTERED FOR THE COURT



                                          Carlos F. Lucero
                                          Circuit Judge




violated Fed. R. App. P. 28(j), and thus grant Anderson’s motion to strike.

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