                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                         June 27, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
KAREN SCAVETTA,

             Plaintiff–Appellant,

v.                                                        No. 13-1311
                                             (D.C. No. 1:10-CV-02986-WJM-KLM)
DILLON COMPANIES, INC.,                                    (D. Colo.)
d/b/a King Soopers, Inc.,

             Defendant–Appellee.

__________________________

EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,

             Amicus Curiae.


                            ORDER AND JUDGMENT*


Before LUCERO and McKAY, Circuit Judges, and BRORBY, Senior Circuit Judge.


      Karen Scavetta sued her former employer, the Dillon Companies, Inc., d/b/a

King Soopers, Inc., for violations of the Americans with Disabilities Act of 1990

      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
(“ADA”), 42 U.S.C. §§ 12101 et seq. A jury returned a verdict in favor of King

Soopers, and Scavetta appeals, challenging a jury instruction issued by the district

court. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                            I

      Scavetta worked for King Soopers for thirty years, the last fifteen years as a

pharmacist. In 2009, she was fired for refusing to administer immunizations to

customers, despite being restricted from doing so by her doctor due to symptoms of

rheumatoid arthritis (“RA”). Although Scavetta had requested an exemption from

administering immunizations, her request was denied. Consequently, she brought

this action, claiming King Soopers failed to provide her a reasonable accommodation

and retaliated against her in violation of the ADA. See 42 U.S.C. §§ 12112(b)(5)(A),

12203(a).1

      Prior to trial, the parties offered competing definitions of the term “major life

activities” for purposes of establishing Scavetta’s disability.2 King Soopers sought to

define “major life activities” to include “such activities as caring for oneself,

performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, or

working.” (Quotation omitted). Scavetta argued that this definition failed to account


      1
       Scavetta also asserted four other claims, but the district court granted
summary judgment in favor of King Soopers on two of them and Scavetta voluntarily
dismissed the remaining two.
      2
        The ADA defines “disability” as “a physical or mental impairment that
substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A).


                                           -2-
for “‘the operation of a major bodily function, including . . . functions of the immune

system.’” (Quoting 42 U.S.C. § 12102(2)(B)). She proposed an instruction that

expressly stated this statutory provision.

       At the close of evidence, the district court held a jury instruction conference.

The court proposed to instruct the jury as follows: “Ms. Scavetta has a disability if

she has a physical impairment that substantially limits one or more of her major life

activities, such as performing manual tasks, walking, standing, or working.” Scavetta

objected, insisting the instruction failed to reflect that major life activities can

“include the operation of major bodily functions such as the immune system or

musculoskeletal system.” The court overruled her objection, however, explaining

that the instruction conformed to the evidence, which “had to do with performing

manual tasks, walking, standing or working.” The court instructed the jury

accordingly, and the jury returned a verdict for King Soopers. Scavetta now

challenges the instruction.

                                             II

       “We review a district court’s decision to give a particular jury instruction for

abuse of discretion, but we review de novo legal objections to the jury instructions.”

Lederman v. Frontier Fire Prot., Inc., 685 F.3d 1151, 1154 (10th Cir. 2012)

(quotation omitted). “Faulty jury instructions require reversal when (1) we have

substantial doubt whether the instructions, considered as a whole, properly guided the

jury in its deliberations; and (2) when a deficient jury instruction is prejudicial.”


                                             -3-
Jones v. United Parcel Serv., Inc., 674 F.3d 1187, 1198 (10th Cir. 2012) (quotation

omitted). Although a party is entitled to have the jury properly instructed on her

theory of the case, there must be competent evidence to support that theory. Pratt v.

Petelin, 733 F.3d 1006, 1009 (10th Cir. 2013).

      “To establish a valid claim under the ADA, a plaintiff must first prove by a

preponderance of the evidence that she has a disability.” Berry v. T-Mobile USA,

Inc., 490 F.3d 1211, 1216 (10th Cir. 2007) (quotation omitted). “To satisfy the

ADA’s definition of disability, a plaintiff must (1) have a recognized impairment,

(2) identify one or more appropriate major life activities, and (3) show the

impairment substantially limits one or more of those activities.” Id. (quotation

omitted). A “major life activity” is defined to include “the operation of a major

bodily function, including but not limited to, functions of the immune system” under

the ADA Amendments Act of 2008 (“ADAAA”), Pub. L. No. 110-325, sec. 4(a),

§ 3(2)(B), 122 Stat. 3553 (codified at 42 U.S.C. § 12102(2)(B)). A regulation

promulgated by the Equal Employment Opportunity Commission similarly defines

“major life activities” to include “[t]he operation of a major bodily function,

including functions of the immune system [and] musculoskeletal . . . functions.”

29 C.F.R. § 1630.2(i)(1)(ii).

      Against this backdrop, the parties agree that “major life activities” can include

“the operation of a major bodily function.” 42 U.S.C. § 12102(2)(B). They disagree,

however, whether there was evidence that Scavetta’s major bodily functions were


                                          -4-
substantially limited. Scavetta asserts there was such evidence because RA

inherently affects the immune and musculoskeletal systems. She says this was

enough to warrant instructing the jury that major bodily functions can constitute

major life activities. King Soopers, however, contends there was no specific

evidence that RA substantially limits the operation of Scavetta’s immune and

musculoskeletal systems, and thus there was no need to instruct the jury on major

bodily functions. The issue we must decide is whether RA’s inherent effect on major

bodily functions was substantially limiting such that it warranted an instruction to the

jury.

        Since the ADA was amended, some courts have considered whether an

impairment’s inherent effect on a major bodily function is substantially limiting.

These courts generally refer to 29 C.F.R. § 1630.2(j)(3)(iii), which lists examples of

impairments that “will, in virtually all cases,” be found to substantially limit a major

bodily function, id. § 1630.2(j)(3)(ii). See, e.g., Tadder v. Bd. of Regents of Univ. of

Wis. Sys., No. 13-CV-105-WMC, 2014 WL 1405171, at *19 n.9 (W.D. Wis. Apr. 10,

2014) (to be published in F. Supp. 2d) (“Post-ADAAA, the endocrine system is

expressly listed as a ‘major bodily function’ . . . . This would appear to generally

establish diabetes as an impairment imposing a substantial limitation on a major life

activity.”); Angell v. Fairmount Fire Prot. Dist., 907 F. Supp. 2d 1242, 1250

(D. Colo. 2012) (“‘[I]t should easily be concluded that . . . cancer substantially limits

the major life activity of normal cell growth’ and accordingly, constitutes a


                                          -5-
disability.” (ellipses in original, additional alteration omitted) (quoting 29 C.F.R.

§ 1630.2(j)(3)(iii)), aff’d, 550 F. App’x 596 (10th Cir. 2013); Katz v. Adecco USA,

Inc., 845 F. Supp. 2d 539, 548 (S.D.N.Y. 2012) (“Cancer will virtually always be a

qualifying disability [because it limits normal cell growth].” (quotation omitted)).

RA is not among these impairments, but the appendix to the regulations states that

“rheumatoid arthritis affects musculoskeletal functions,” 29 C.F.R. pt. 1630, App.

§ 1630.2(i).

       These authorities are insufficient to establish that RA will substantially limit

major bodily functions in all cases. “There is no ‘per se’ disability.” Id.

§ 1630.2(j)(3). An individualized assessment is still required to determine “whether

an impairment substantially limits a major life activity.” 29 C.F.R.

§ 1630.2(j)(1)(iv). Although the term “‘[s]ubstantially limits’ is not meant to be a

demanding standard,” id. § 1630.2(j)(1)(i), the regulations state that “not every

impairment will constitute a disability,” id. § 1630.2(j)(1)(ii). Moreover, while the

question of “whether [an] impairment substantially limits a major life activity is

ordinarily a question of fact for the jury,” Carter v. Pathfinder Energy Servs., Inc.,

662 F.3d 1134, 1142 (10th Cir. 2011), there must be some evidence to support the

theory that RA substantially limited Scavetta’s immune and musculoskeletal systems,

see Pratt, 733 F.3d at 1009. We have previously explained that “it is not sufficient

for a plaintiff to identify an impairment and leave the court to infer that it results in

substantial limitations to a major life activity.” Sanchez v. Vilsack, 695 F.3d 1174,


                                           -6-
1178 (10th Cir. 2012) (examining substantial limitation under Rehabilitation Act);

see id. at 1177 n.2 (noting that same substantive standards apply for determining

disability under ADA and Rehabilitation Act).

      At trial, Scavetta’s evidence focused on RA’s effects on the immune systems

of RA patients in general. Scavetta’s rheumatologist, Dr. Vance Bray, described RA

as “a disorder of the immune system,” in which “the immune system starts attacking

the joints and other organs.” He said it is usually a progressive condition and can

affect the lungs or heart, but it is predominantly a disease of the joints. Moreover,

Dr. Bray explained that RA causes toxins to be released into the joints, which can

lead to the deterioration of bone and thinning of cartilage. He suspected early in his

treatment of Scavetta that she had RA and, consistent with the tendered instruction,

testified that she experienced pain, stiffness, fatigue, swelling, and tenderness in her

joints. But his testimony returned to a general prognosis for RA patients, who he

said have a high risk of disability that, before the use of current medications, was as

much as a 50% chance of total disability within ten years.

      Scavetta’s testimony was more individualized, but focused on her physical

activities that were limited by RA. She said she had difficulty performing manual

tasks such as opening prescription medicine bottles and retracting needles when

giving injections. Scavetta also stated that she had occasional trouble walking and

experienced difficulty lifting pots and pans when cooking. Additionally, she had




                                          -7-
trouble squeezing, gripping, and grasping, and could no longer ride her bike, play

tennis or golf, or garden.

       Based on this testimony, the district court tailored the instruction to reflect that

“Ms. Scavetta has a disability if she has a physical impairment that substantially

limits one or more of her major life activities, such as performing manual tasks,

walking, standing, or working.” This instruction properly focused the jury’s attention

on the evidence relating to limitations of Ms. Scavetta’s physical activities. See

Dilley v. SuperValu, Inc., 296 F.3d 958, 965 (10th Cir. 2002) (finding no plain error

where instruction focused jury’s attention on evidence of how impairment

substantially limited plaintiff’s major life activity). Because there was no specific

evidence that RA substantially limited the operation of Scavetta’s major bodily

functions, the court correctly declined to reference major bodily functions in its

instruction.

                                            III

       The judgment of the district court is AFFIRMED.


                                                  Entered for the Court



                                                  Carlos F. Lucero
                                                  Circuit Judge




                                           -8-
