                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          DEC 10 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    KEVIN LEWIS,

                Plaintiff-Appellant,

    v.                                                   No. 98-6429
                                                   (D.C. No. 97-CV-1783-C)
    INDEPENDENT SCHOOL DISTRICT                          (W.D. Okla.)
    NO. I-89 OF OKLAHOMA COUNTY,
    OKLAHOMA, dba Oklahoma City
    Public Schools,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before BALDOCK , PORFILIO , and BRORBY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral




*
      This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      Plaintiff-appellant worked as a janitor for defendant school district. He

eventually developed a serious skin condition caused by his exposure to the

chemicals required to perform his janitorial duties. After unsuccessful attempts

to secure a transfer or a promotion to another position, plaintiff filed this lawsuit

alleging violation of the Americans with Disabilities Act, deprivation of due

process in violation of Oklahoma statute and the federal and state constitutions,

and breach of employment contract.   1



      The district court granted summary judgment to defendant on plaintiff’s

ADA and statutory due process claims. At the conclusion of plaintiff’s case at

trial, the court further granted defendant’s Fed. R. Civ. P. 50 motion on the

remaining issues. Plaintiff appeals these decisions and includes the argument that

the district court abused its discretion in refusing to admit a proffered exhibit.

We affirm.

            We review the district court’s grant of summary judgment
      de novo, applying the same legal standard used by the district court.
      Summary judgment is appropriate “if the pleadings, depositions,
      answers to interrogatories, and admissions on file, together with the
      affidavits, if any, show that there is no genuine issue as to any
      material fact and that the moving party is entitled to a judgment as


1
      Plaintiff also brought a claim of racial discrimination which he does not
press on appeal.

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       a matter of law.” Fed. R. Civ. P. 56(c). When applying this
       standard, we view the evidence and draw reasonable inferences
       therefrom in the light most favorable to the nonmoving party.

Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs.         ,

165 F.3d 1321, 1326 (10th Cir.) (further citations and quotations omitted),

cert. denied , 120 S. Ct. 53 (1999).

       With respect to the ADA claim upon which the district court granted

defendant’s motion for summary judgment, we affirm. While plaintiff presented

evidence that he is unable to work around vapors, chemicals, detergent and heat,

he offered no evidence that this limitation precluded him from performing

“either a class of jobs or a broad range of jobs in various classes.”   See 29 C.F.R.

§ 1630.2(j)(3)(i). The evidence did not address plaintiff’s complete vocational

training, “the geographical area to which he has access, or the number and type of

jobs demanding similar training from which [plaintiff] would also be

disqualified.”   Bolton v. Scrivner, Inc. , 36 F.3d 939, 944 (10th Cir. 1994);

see also Welsh v. City of Tulsa , 977 F.2d 1415, 1419 (10th Cir. 1992); 29 C.F.R.

Pt. 1630 App. § 1630.2(j). Because this evidence was necessary to prove that

plaintiff is substantially limited in the major life activity of working, plaintiff has

failed to prove that he is disabled for purposes of the ADA.       2




2
       To the extent plaintiff argues in his brief to this court that his rights were
violated because defendant perceived him to be disabled, we note that he failed to
                                                                           (continued...)

                                             -3-
      As mentioned above, the district court also granted defendant’s Rule 50

motion at the end of plaintiff’s case in chief. Our review of this ruling is also

de novo. See Kinser v. Gehl Co. , 184 F.3d 1259, 1267 (10th Cir. 1999).

Judgment as a matter of law pursuant to Rule 50 must be granted “if there is no

legally sufficient evidentiary basis . . . with respect to a claim or defense . . .

under the controlling law.”    Baty v. Willamette Indus., Inc.   , 172 F.3d 1232, 1241

(10th Cir. 1999) (quotation omitted).

      At trial, plaintiff presented evidence hoping to prove that he had been

terminated without the required due process and that defendant had breached his

implied employment contract. In granting the Rule 50 motion, the court found the

evidence was indisputable that plaintiff had never been terminated, but had only

been placed on an extended medical leave of absence.        See Appellant’s App.,

Vol. II at 454-55. Without termination, no rights, either constitutional or

contractual, arise. We have reviewed the record in this case and agree with the

district court. This factual finding also supports the court’s grant of summary

judgment to defendant on plaintiff’s statutory due process claim.       See Okla. Stat.

Ann. tit. 70, § 6-101.46(A).


2
 (...continued)
raise that issue either in his complaint or in his response to defendant’s motion for
summary judgment. It is a general rule that this court will not consider an issue
on appeal that was not raised to the district court.  See Walker v. Mather (In re
Walker) , 959 F.2d 894, 896 (10th Cir. 1992).

                                            -4-
       Finally, plaintiff argues that the district court abused its discretion in

refusing to admit personal notes taken by one of defendant’s agents.        See United

States ex rel. Leonard Tire Co. v. Rayco, Inc.      , 616 F.2d 462, 464 (10th Cir.

1980) (reviewing exclusion of exhibit not included in pretrial order for abuse

of discretion). The exhibit admittedly was not included in the pretrial order.

A pretrial order controls the later course of a trial unless modified.    See

Fed. R. Civ. P. 16(e). “The order following a final pretrial conference shall be

modified only to prevent manifest injustice.”       Id. Petitioner does not argue that

the exclusion of exhibit 23 resulted in manifest injustice to his cause. Further,

any possible injustice in this case was cured by extensive questioning of the

exhibit’s author by plaintiff’s attorney.    See Appellant’s App., Vol. II at 321-29.

       The judgment of the United States District Court for the Western District

of Oklahoma is AFFIRMED.


                                                          Entered for the Court



                                                          Wade Brorby
                                                          Circuit Judge




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