                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            JAN 9 2002
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    DAVID LEROY,

                  Plaintiff-Appellant,

    v.                                                    No. 01-5091
                                                     (D.C. No. 00-CV-448-J)
    PAMAX DEVELOPMENT, INC.,                               (N.D. Okla.)
    a corporation, d/b/a Burger King,

                  Defendant-Appellee.


                              ORDER AND JUDGMENT          *




Before MURPHY , McKAY , 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      This order and judgment is not binding precedent, except under the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 David Leroy was fired from his job as a manager with defendant

Burger King. He filed suit, alleging that Burger King discriminated against him

on account of a disability caused by knee problems, in violation of the Americans

with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, and the Oklahoma

Anti-Discrimination Act, Okla. Stat. tit. 25, § 1101-1901. By consent of the

parties, the magistrate judge issued a dispositive decision.       See 28 U.S.C.

§ 636(c). After review, the magistrate judge granted summary judgment to

Burger King. Mr. Leroy appeals. We have jurisdiction under 28 U.S.C. § 1291.

       Our review is hampered by the deficiencies of appellant’s brief on appeal.

First, instead of presenting his arguments in his brief on appeal, appellant

incorporated his district court brief by reference. This court has expressly

disapproved that practice because Fed. R. App. P. 28 requires the appellant to set

out an argument supported by authorities in his appellate brief.       Gaines-Tabb v.

ICI Explosives, USA, Inc. , 160 F.3d 613, 623-24 (10th Cir. 1998) (discussing

what is now Fed. R. App. P. 28(a)(9)). For this court to allow an appellant to

incorporate a brief or other materials by reference would unnecessarily increase

the court’s work while allowing the appellant to skirt the page, word, or line

limits that apply to his brief.   Id. at 624. In this case, appellant’s brief on appeal

would exceed the thirty-page limit by about twenty pages if his district court brief




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were added to it.   1
                        See Fed. R. App. P. 32(a)(7). Because appellant incorporated

his district court brief by reference, he failed to provide in his brief on appeal any

citations to the record to point the court to the evidence that supports his position.

       This court has concluded that arguments not fully set forth in the brief are

waived. Gaines-Tabb , 160 F.3d at 624. Thus, we are not obligated to review

appellant’s arguments in this case. Nevertheless, we have reviewed de novo the

magistrate judge’s order in light of appellant’s district court brief and the record

on appeal.

       Summarizing appellant’s two lists of issues, he argues on appeal that:

(1) he furnished enough evidence to establish genuine issues of material fact on

his substantial impairment of a major life activity; (2) the district court cannot

support regular attendance as an essential job function for appellant because

appellee never offered any evidence to prove regular attendance was an essential

job function; (3) the district court erred in not requiring appellee to engage in the

interactive reasonable accommodation process and in acting as a super personnel

department in its approval of appellant’s firing; (4) the district court should be

reversed for the same reasons on his Oklahoma state law handicap discrimination

claim; and (5) any award of costs should be reversed.


1
       Because no certificate of compliance with word or line limits was included
with appellant’s brief, as required by Fed. R. App. P. 32(a)(7)(C), we deem the
thirty page limit applicable.

                                            -3-
       The magistrate judge reviewed the facts alleged in appellant’s deposition in

light of the appropriate legal standard for the ADA. The magistrate judge stated

that while appellant was working at Burger King/Bartlesville, he jogged, golfed,

lifted weights, and walked for exercise, as if those were routine activities. The

deposition does not support so broad a finding, as appellant testified that those

activities were limited. However, the record does support the statements that

appellant mowed his yard, raked leaves, occasionally took out the trash and

vacuumed, and did other duties around his house while he was working at Burger

King/Bartlesville. Appellant’s App. at 95-96 (Appellant’s depo. at 65-66). The

magistrate judge could have added that appellant admitted that the duties he

performed at his house required lifting, bending, and stooping, like his job.

Id. at 94, 96 (Appellant’s depo. at 60, 66). Therefore, the conclusion that

appellant did not show that he is substantially limited in a major life activity

by his knee problems is supported by the record. Appellant’s district court brief

does not raise an issue of material fact. His claim that regular attendance at work

was not required is belied by his testimony that he was working seventy to eighty

hours per week because the store had been neglected and his presence was

required to clean it up and get it running at company standards.   Id. at 94, 97, 101

(Appellant’s depo. at 60, 71, 89). Appellant’s other arguments are also without

merit and do not warrant discussion.


                                            -4-
      Accordingly, we AFFIRM for substantially the same reasons as those set

forth in the magistrate judge’s May 2, 2001 order.


                                                     Entered for the Court



                                                     Michael R. Murphy
                                                     Circuit Judge




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