                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-4119
                                   ___________

Sam Spades,                             *
                                        *
              Appellant,                *
                                        * Appeal from the United States
      v.                                * District Court for the Eastern
                                        * District of Arkansas.
City of Walnut Ridge, Arkansas,         *
an Incorporated City,                   *
                                        *
              Appellee.                 *
                                   ___________

                             Submitted: June 18, 1999

                                  Filed: July 28, 1999
                                   ___________

Before BEAM and MORRIS SHEPPARD ARNOLD, Circuit Judges, and KYLE,1
      District Judge.
                          ___________

BEAM, Circuit Judge.

      Sam Spades (Spades) appeals the grant of summary judgment on his claims
against the City of Walnut Ridge (the City) for violation of the Americans with
Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., and the Family and Medical Leave



      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota, sitting by designation.
Act (FMLA), 29 U.S.C. §§ 2601 et seq. The district court2 granted summary judgment
on the ADA and FMLA claims because Spades failed to make any showing that the
City's legitimate nondiscriminatory reason was a pretext. We affirm.

I.    BACKGROUND

       Spades was employed as a police officer with the City when he attempted
suicide by inflicting a gunshot wound to his head. The handgun Spades used was
issued by the City. After receiving treatment for his physical injuries, and medication
and counseling for his depression, Spades alleges he was capable of returning to work
and performing the duties of a police officer. However, the City was advised that
because it had knowledge of Spades's violent use of a firearm, his continued
employment would increase the City's exposure to legal liability. As a result, Spades
was terminated, giving rise to his claims that the City violated the ADA and the FMLA.
He alleges the City discharged him because of his disability, depression, or in the
alternative for taking medical leave.

       The district court found that although Spades made a sufficient showing to
establish the existence of a prima facie case under the ADA, he did not come forward
with facts showing the City's legitimate nondiscriminatory reason to be pretext.
Spades's FMLA claim similarly failed because he did not come forward with
countervailing facts showing the legitimate reason advanced by the City to be a pretext
for discharging him because he took medical leave.




      2
        The Honorable Susan Webber Wright, Chief Judge, United States District Court
for the Eastern District of Arkansas, presiding.

                                         -2-
II.   DISCUSSION

       "In an employment discrimination case, the plaintiff must initially present a prima
facie case to survive a motion for summary judgment." Kiel v. Select Artificials, Inc.,
169 F.3d 1131, 1134-35 (8th Cir. 1999) (en banc). A prima facie case requires
showing that Spades (1) was disabled within the meaning of the ADA, (2) was
qualified to perform the essential functions of the job, and (3) suffered adverse
employment action under circumstances giving rise to an inference of unlawful
discrimination. See id. at 1135. Upon establishing a prima facie case, the burden shifts
to the employer to articulate a legitimate, nondiscriminatory reason for discharge. After
articulating such a reason, the burden shifts back to the employee to present evidence
that the reason is pretextual. See Wilking v. County of Ramsey, 153 F.3d 869, 872-73
(8th Cir. 1998). The district court granted summary judgment because Spades could
not carry his burden at the pretext stage. We review a grant of summary judgment de
novo and consider first whether Spades presented a prima facie case. See Kiel, 169
F.3d at 1134-1135.

       Spades's alleged disability is depression. The evidence supports the allegation
that Spades has suffered from depression in the past. However, this commands no per
se conclusion that he is presently disabled within the meaning of the ADA. The
question of what constitutes a disability within the meaning of the ADA was recently
taken up by the Supreme Court in Sutton v. United Air Lines, Inc., No. 97-1943, 1999
WL 407488 (U.S. June 22, 1999) and Murphy v. United Parcel Service, Inc., No. 97-
1992, 1999 WL 407472 (U.S. June 22, 1999). Under Sutton and Murphy, a
determination of whether Spades's depression is a disability must be made with
reference to any mitigating measures he employs. See Sutton, 1999 WL 407488, at *7.
"A person whose physical or mental impairment is corrected by medication or other
measures does not have an impairment that presently 'substantially limits' a major life
activity." Id. at *8.


                                           -3-
       The record shows that Spades took medication and received counseling for his
alleged disability of depression. He concedes that resort to medicines and counseling
"allow him to function without limitation." Thus, his depression is corrected and cannot
substantially limit a major life activity–a requirement for finding that an individual is
disabled within the meaning of the ADA. Although Spades cannot establish an actual
disability which presently and substantially limits a major life activity, he argues in the
alternative that he is "perceived to be disabled," and thereby qualifies as disabled within
the meaning of the ADA. See id. at *12; 42 U.S.C. § 12102(2)(C) (having a disability
includes "being regarded as having" a physical or mental impairment that substantially
limits a major life activity). The record does not support the allegation that the City
perceived Spades as disabled within the meaning of the ADA. Thus, he cannot
establish a prima facie case.

       Even assuming Spades established a prima facie case, we agree with the district
court that he has not shown that the legitimate nondiscriminatory reason for termination
was a pretext.         The City articulated a nondiscriminatory reason for his
termination–increased likelihood of liability. Increased potential liability associated
with an employee's past activities is a legitimate concern of the City, particularly when
there is known violent behavior. Claims of negligent hiring, supervision, and retention
loom large in the minds of employers and their lawyers. Thus, Spades has advanced
no factual or legal argument, beyond mere conjecture and conclusion, that the City's
stated reason for discharging him was a pretext for discrimination.

      We also find that Spades's FMLA claim fails for similar reasons. The record
does not support the inference that Spades was fired because he took medical leave.
Summary judgment on both claims was appropriate.

III.   CONCLUSION

       For the foregoing reasons, we affirm the judgment of the district court.

                                           -4-
KYLE, District Judge, concurring.

       I concur in the majority's opinion because it is clear that Spades failed to show
that the legitimate nondiscriminatory reason proffered by the city for his termination
was pretextual. When this case was argued, neither Sutton nor Murphy had yet been
decided by the United States Supreme Court. These cases were not relied upon by the
district court or by the parties on appeal. The issue of whether Spades was a "qualified
individual with a disability," according to the standards set forth in Sutton and Murphy,




                                          -5-
