                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JAN 30 1998
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    GEORGE GREGORY JACKSON,

                Plaintiff-Appellant,

    v.                                                   No. 97-3076
                                                   (D.C. No. 96-2055-KHV)
    ANALYST INTERNATIONAL                                 (D. Kan.)
    CORPORATION; ANDERSEN
    CONSULTING; YELLOW
    TECHNOLOGY SERVICES, INC.,

                Defendants-Appellees.




                            ORDER AND JUDGMENT *



Before BRORBY, BARRETT, and BRISCOE, 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      This order and judgment is not binding precedent, except under the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.
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Plaintiff-appellant George Gregory Jackson appeals from the district court’s

orders granting summary judgment to defendants-appellees Analyst International

Corp. (AIC), Andersen Consulting (Andersen) and Yellow Technology Services

(YTS). We affirm.

      Plaintiff suffered a broken left tibia and clavicle in an automobile accident

in 1984. He claims that as a result of his accident, he cannot work while wearing

a tie, and also that he needs to wear loose-fitting clothing around the clavicle area

and shoes that accommodate his feet.

      In February 1995, AIC hired plaintiff as a computer consultant. AIC is a

contract programming service which provides temporary computer programming

services to its clients. AIC assigned plaintiff to Anderson on a temporary basis.

Anderson ran a project known as the BASICS project for YTS. Plaintiff worked

on the BASICS project at the YTS facility from February 6, 1995 until June 6,

1995, when AIC removed him from the project and terminated his consulting

contract.

      Andersen and YTS employees are expected to wear dress shirts and ties to

work. YTS employees may wear “business casual” attire on Fridays and more

casual dress on the last Friday of the month. From February 6, 1995 to March 13,


                                          -2-
1995, plaintiff wore a dress shirt and a loose tie to work. He also wore loose

fitting pants and casual leather shoes with thick cushioned socks. On March 13,

1995, plaintiff brought his supervisor at YTS a note from his doctor in which the

doctor recommended that plaintiff be allowed to wear more casual type shirts in

order not to irritate the collar bone fracture. After receiving this note, defendants

did not require plaintiff to wear a tie to work.

      Plaintiff and defendants differ on what happened next. Plaintiff insists that

he was well-groomed throughout the remainder of his employment, wearing white

button-down shirts or polo shirts except on Fridays, when more casual attire was

permitted. Defendants claim that plaintiff began wearing Hawaiian print shirts,

tennis shoes and wrinkled pants to work.

      AIC removed plaintiff from work at YTS, in part because his business attire

was inappropriate by Andersen and YTS standards. AIC attempted to locate

additional work for plaintiff, but was unable to do so, given his style of dress.

Eventually, AIC terminated plaintiff’s employment. Thereafter, plaintiff filed this

suit, contending that defendants’ actions in terminating his employment violated

the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12001-12213.

      “We review a grant of summary judgment de novo. We apply the same

standard under Fed. R. Civ. P. 56(c) used by the district court: we determine

whether a genuine issue of material fact was in dispute, and, if not, whether the


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substantive law was correctly applied.” Den Hartog v. Wasatch Academy, 129

F.3d 1076, 1081 (10th Cir. 1997) (citations omitted).

       To establish a claim under the ADA, a plaintiff must demonstrate: (1) that

he is a disabled person within the meaning of the ADA; (2) that he is qualified;

that is, that he can perform the essential functions of the job with or without

reasonable accommodation (which he must describe); and (3) that the employer

discriminated against him in terminating his employment because of his alleged

disability. See Sutton v. United Air Lines, Inc., 130 F.3d 893, 897 (10th Cir.

1997). The district court found that plaintiff failed to establish the first two

criteria of this test.

       The ADA defines a “disability” as “(A) a physical or mental impairment

that substantially limits one or more of the major life activities of such individual;

(B) a record of such an impairment; or (C) being regarded as having such an

impairment.” 42 U.S.C. § 12102(2). Plaintiff contends that he qualifies as

“disabled” under both (A) and (C).

       We first consider whether plaintiff’s alleged disability substantially limits

one or more of his major life activities. The ADA does not define “major life

activities;” however, the EEOC regulations that implement the statute identify

them as “functions such as caring for oneself, performing manual tasks, walking,

seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R.


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§ 1630.2(i). In order for a physical or mental impairment to be “substantially

limiting” the individual must be:

      (i) Unable to perform a major life activity that the average person in
      the general population can perform; or

      (ii) Significantly restricted as to the condition, manner or duration
      under which an individual can perform a particular major life activity
      as compared to the condition, manner or duration under which the
      average person in the general population can perform that same
      major life activity.

29 C.F.R. § 1630.2(j)(1).

      The district court found that plaintiff failed to demonstrate that he is

substantially impaired in a major life activity other than work. It noted that he

admitted his ability to care for his personal hygiene, food preparation, shopping

and house cleaning without assistance. Further, he participates in sports such as

racquetball and golf, which are listed as hobbies on his resume. 1 The evidence

supports the district court’s conclusions.

      The evidence demonstrates plaintiff can perform all relevant major life

activities. He contends, however, that his ability to perform such activities is


1
       Plaintiff argues before this court that these sports were listed on his resume
as hobbies since 1980, before his accident, and merely carried forward. This
argument is frivolous in light of his deposition testimony that the resume
accurately reflected his hobbies as of 1994-95, and that he continues to play many
of the sports listed. Appellant also likens his sports activities to those of a
disabled participant in the Special Olympics. This argument is also frivolous;
nothing in the record indicates that plaintiff participates in sports as a disabled or
handicapped person.

                                         -5-
significantly restricted because he can only do so while dressed casually.

Plaintiff testified that his collarbone pain interferes with his major life activities

when he is compelled to wear a dress shirt and tie; that he cannot pay attention to

what he sees or what he hears, and cannot learn because he is in such pain. He

points to the note from his physician, recommending that he be allowed to wear

“more casual type shirts” in order to avoid irritating his collar bone fracture.

Assuming that plaintiff thereby made a minimally sufficient showing of

impairment to survive summary judgment, he has failed to show that he must

perform any major life activities outside the work environment while dressed in a

shirt and tie. We therefore conclude that the only major life activity even

remotely affected by plaintiff’s alleged disability is his ability to work.

      The regulations specify that with respect to the major life activity of

working, the term “substantially limits” means “significantly restricted in the

ability to perform either a class of jobs or a broad range of jobs in various classes

as compared to the average person having comparable training, skills and

abilities.” 29 C.F.R. § 1630.2(j)(3)(i). Specific factors to be considered, in

addition to those applicable to life activities generally, include:

      (A) The geographical area to which the individual has access;

      (B) The job from which the individual has been disqualified because
      of an impairment, and the number and types of jobs utilizing similar
      training, knowledge, skills or abilities, within that geographical area,


                                           -6-
      from which the individual is also disqualified because of the
      impairment (class of jobs); and/or

      (C) The job from which the individual has been disqualified because
      of an impairment, and the number and types of other jobs not
      utilizing similar training, knowledge, skills or abilities, within that
      geographical area, from which the individual is also disqualified
      because of the impairment (broad range of jobs in various classes).

Id. § 1630.2(j)(3)(ii).

      Plaintiff has failed to present evidence showing that his need to dress

casually has significantly restricted his ability to perform a class of jobs or a

broad range of jobs in various classes. Plaintiff points to an expert report

showing that one-third of computer programmer positions in the Kansas City

metropolitan area require the programmer to wear a shirt and tie. He presents no

evidence, however, that his access to jobs is limited to the Kansas City area, nor

does he show that he is unable to perform other jobs within or outside the class of

computer programmer. No reasonable jury could conclude that plaintiff has “a

physical or mental impairment that substantially limits one or more of [his] major

life activities,” including work.

      Plaintiff argues, alternatively, that he is disabled because he is “regarded as

having” an impairment which substantially limits his ability to work. This

argument requires plaintiff to show that he:

      (1) Has a physical or mental impairment that does not substantially
      limit major life activities but is treated by a covered entity as
      constituting such limitation;

                                          -7-
      (2) Has a physical or mental impairment that substantially limits
      major life activities only as a result of the attitudes of others toward
      such impairment; or

      (3) Has none of the impairments defined in [29 C.F.R. § 1630.2(h)]
      but is treated by a covered entity as having a substantially limiting
      impairment.

29 C.F.R. § 1630.2(l).

      In determining whether a plaintiff is regarded as having an impairment

which substantially limits his ability to work, we focus on the impairment’s or

perceived impairment’s effect upon the attitudes of others. See Sutton, 130 F.3d

at 903. The plaintiff must show “that the employer regarded him or her as being

substantially limited in performing either a class of jobs or a broad range of jobs

in various classes.” Id. at 904. The district court correctly determined that

plaintiff failed to present evidence of this factor pertaining to Andersen and YTS.

Although he showed that they allowed him to go without a tie, this fact alone is

insufficient to raise a triable issue of fact concerning whether Andersen and YTS

regarded him as disabled.

      AIC, on the other hand, terminated plaintiff’s employment because it had

no other clients who would allow him to work in casual attire. Moreover, Dave

Henneberg, plaintiff’s manager at AIC, believed plaintiff could not perform his

job properly if required to wear a tie. Plaintiff points to no evidence, however,

that AIC regarded him as significantly restricted in his ability to perform a class


                                          -8-
of jobs or a broad range of jobs in various classes compared to the average

person. Therefore, plaintiff fails to show that AIC regarded him as disabled.

      In light of our conclusion that plaintiff has failed to show that he is

disabled, we need not consider whether he meets the other criteria to establish a

claim under the ADA. The judgment of the United States District Court for the

District of Kansas is AFFIRMED. All pending motions are DENIED. 2



                                                     Entered for the Court



                                                     James E. Barrett
                                                     Senior Circuit Judge




2
      Plaintiff has submitted several additional medical exhibits which were not
before the district court when it ruled on the summary judgment motions. In
reviewing a ruling on summary judgment, we will not consider evidence not
before the district court. See John Hancock Mut. Life. Ins. Co. v. Weisman, 27
F.3d 500, 506 (10th Cir. 1994). We therefore deny plaintiff’s motion to
supplement the record. Defendants have moved to strike the additional exhibits
submitted by plaintiff. Our denial of plaintiff’s motion to supplement the record
makes it unnecessary for us to grant the relief sought by defendants; accordingly,
we also deny their motions to strike.

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