                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          APR 2 2003
                               TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                              Clerk

 ROY VELARDE,

             Plaintiff - Appellant,                    No. 02-4073
                                                      District of Utah
 v.                                              D.C. No. 2:97-CV-524-ST

 ASSOCIATED REGIONAL AND
 UNIVERSITY PATHOLOGISTS, a
 Utah corporation,

             Defendant - Appellee.


                          ORDER AND JUDGMENT            *




Before BRISCOE , McKAY , and McCONNELL , Circuit Judges.          **




      Plaintiff Roy Velarde filed a complaint against his former employer,

Associated Regional and University Pathologists (ARUP), alleging discrimination

under the Americans With Disabilities Act (ADA), 42 U.S.C. §§ 12101 et. seq.


      *
       This order and judgment is not binding precedent, except under the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.

      **
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument.
The district court granted summary judgment for Defendant, finding that Plaintiff

failed to submit evidence creating a genuine issue of material fact as to whether

he was “disabled” within the meaning of the ADA. On appeal, we review the

district court’s grant of summary judgment de novo, applying the same legal

standards as the district court. Baty v. Willamette Indust., Inc., 172 F.3d 1232,

1241 (10th Cir. 1999). We affirm the district court’s grant of summary judgment

in favor of the Defendant.

      Defendant ARUP conducts laboratory testing of medical specimens

received from medical providers. Velarde worked as a full time courier for

ARUP. His duties included traveling to various locations and picking up

specimens for testing. According to the job description, a courier must be “able to

maneuver boxes weighing up to fifty pounds.” Appellee’s App. at 22-23.

Velarde was assigned to several routes, including one to the airport to pick up

specimens arriving from out of state (the “airport route”), and one to the

University of Utah health care facilities (the “University route”). According to

Velarde, the airport route required more driving and less lifting than the

University route.

      In October of 1994, Velarde began experiencing back pain. He took off

time from work and received treatment at the University of Utah Spine Center. In

late December of that year, Velarde returned to work under a twenty-five pound


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lifting restriction. Velarde worked for a few weeks in early 1995 before again

taking medical leave due to his back pain. On May 25, 1995, after several weeks

of treatment and diagnosis, Velarde’s physician allowed him to return to work

with a twenty-five pound lifting restriction, with no repetitive lifting. Appellee’s

App. at 66. These restrictions were reaffirmed on June 12, 1995. Appellee’s

App. at 94. On June 17, 1995, Velarde suffered a non-work related injury, and

Velarde, in consultation with his doctors, determined that he could not return to

work. ARUP terminated Velarde’s employment on July 18, 1995.

       In Toyota Motor Manufacturing v. Williams, 534 U.S. 184, 197 (2002), the

Supreme Court held that to qualify as “disabled” under the ADA, a claimant must

demonstrate that his impairment imposes a “substantial” limitation on a “major

life activity.” The Court defined substantial impairment as “an impairment that

prevents or severely restricts the individual from doing activities that are of

central importance to most people’s daily lives.” Id. at 198; see also Lusk v. Ryder

Integrated Logistics, 238 F.3d 1237, 1239 (10th Cir. 2001).

       The parties are in agreement that Plaintiff is impaired, and that lifting is a

major life activity. See Lowe v. Angelo’s Italian Foods, Inc., 87 F.3d 1170, 1172

(10th Cir. 1996) (lifting is major life activity); Lusk, 238 F.3d at 1240 (same).

Thus, the relevant question is whether Plaintiff’s impairment “substantially

limits” the major life activity of lifting.


                                              3
      In reliance on the Equal Employment Opportunity Commission’s (EEOC)

regulations interpreting the ADA, 29 C.F.R.§ 1630.2(j)(1), 1 this Court has held

that to demonstrate that an impairment is substantially limiting a plaintiff must

show that he is “unable to perform the activity or is significantly restricted in the

ability to perform the major life activity compared to the general population.”

Lusk, 238 F.3d at 1240. Where an impairment is not so severe that it is

“substantially limiting on its face,” an ADA plaintiff must present “evidence

comparing her . . . restrictions to that of an average person.” Id. 2 Limitations on

the ability to engage in life activities, such as lifting heavy objects, is part of the

human condition, and unless an ADA plaintiff can show that his impairment

reduces his capabilities significantly below those of the average person, he is not

deemed “disabled” under the Act.

      Not every impairment necessitates a presentation of comparative evidence.

Some impairments are substantially limiting on their face. For example, in Lowe,

we found that a multiple sclerosis patient was disabled within the meaning of the

      1
        In Toyota Motor, 534 U.S. at 194, the Supreme Court declined to decide
what level of deference, if any, should be given to the EEOC’s interpretation of
the term “disability” as defined in 29 C.F.R. § 1630.2(g)-(j). This Court,
however, has adopted the standard embodied in 29 C.F.R. § 1630.2(j) as the rule
for this Circuit. Lusk, 238 F.3d at 1240.
      2
        It may be possible in certain cases for a plaintiff to meet this burden by
presenting particularized evidence regarding the effect of his impairment “on his
day-to-day activities or the long-term impact of his restriction.” Lusk, 238 F.3d at
1241.

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ADA upon a showing that she could not lift more than fifteen pounds absolutely

and even less than fifteen pounds only on occasion. Lowe, 87 F.3d at 1174.

Because this impairment was “substantially limiting on its face,” we held that the

plaintiff in Lowe did not have to present comparative evidence to withstand

summary judgement. Id.; see also Lusk, 238 F.3d at 1240-41.

      However, regarding the twenty-five pound lifting restriction at issue in this

case, our precedents, as well as those of our sister circuits, hold that such a

restriction is not substantially limiting on its face. See Lusk, 238 F.3d at 1241,

citing Thompson v. Holy Family Hospital, 121 F.3d 537, 540 (9th Cir. 1997)

(twenty-five pound lifting restriction is not a substantial limitation on the ability

to lift); Williams v. Channel Master Satellite Sys., Inc., 101 F.3d 346, 349 (4th

Cir. 1996) (same); see also Ancutt v. Six Flags Over Mid-America, Inc., 85 F.3d

1311, 1319 (8th Cir. 1996) (same). To raise a genuine issue of material fact as to

whether he is disabled under the ADA, therefore, Velarde was required to present

evidence comparing his lifting abilities to those of the general populace. Since he

offered no such comparative evidence, the district court properly granted

summary judgment.

      Velarde argues that the district court’s reasoning was flawed because “[t]he

question of whether a person is substantially limited in lifting should not develop

into a per se rule (ability to lift over “x” pounds precludes a finding of disability)


                                           5
because each case should be analyzed on a case-by case basis.” Appellant’s Br.

23; see also id. at 28 (calling the requirement of comparative evidence

“unreasonable and unwise”). But this misconceives the principle of Lusk. Under

Lusk, there is no “per se rule” precluding a finding of disability; rather, there is a

threshold of severity of impairment below which the plaintiff bears the burden of

proving substantiality. This is precisely the case-by-case approach that Appellant

professes to prefer.

      In addition to criticizing the legal framework this Court has adopted for

determining the substantiality of impairment under the ADA, Plaintiff points to

numerous facts demonstrating additional aspects of his impairment (other than the

twenty-five pound lifting restriction) that he says substantially limit his

engagement in major life activities. See Appellant’s Br. at 18-20. Velarde

presumably reads our decision in Lusk as holding that even if the impairment is

not substantial on its face and comparative evidence is not presented, a plaintiff

can nevertheless avoid summary judgment by demonstrating that the lifting

restriction coupled with additional impairments imposes a substantial limitation

on major life activities. However, we have no need to consider the validity of this

interpretation because, even accepting it arguendo, we find that Velarde failed to

present a genuine issue of material fact.

      Appellant’s factual assertions suffer from several defects, both procedural


                                            6
and substantive. Appellant introduces new evidence on appeal that was not part

of the record before the district court on summary judgement, see Appellant’s

App. at 85-86, and relies on this evidence to support a conclusion of substantial

impairment. See Appellant’s Brief at 7, 18. Additionally, Appellant’s brief

alleges numerous facts without appropriate citations to the record. See e.g.

Appellants Br. at 11 ¶ 17; See also Fed. R. App. Proc. 28(a)(7) (Appellant’s brief

must contain a statement of facts relevant to the issues submitted for review with

appropriate references to the record).

      However, even aside from these procedural errors, Appellant has not

offered sufficient evidence of substantial limitation on his daily functioning to

overcome a summary judgment motion. In Toyota, the Supreme Court defined

substantial impairment as “an impairment that prevents or severely restricts the

individual from doing activities that are of central importance to most people’s

daily lives.” 534 U.S. at 198. In addressing “substantial limitation” in the

workplace context, the Court held that a claimant must show an inability to work

in either a class of jobs or a broad range of jobs in various classes. Id. at 200. In

this regard, the Court further held that the central inquiry must be whether the

claimant is unable to perform central daily tasks, rather than whether a claimant

can perform the tasks associated with the claimant’s particular job. Id. at 200-01.




                                           7
      Velarde’s allegations do not show how his impairments, even in the

aggregate, substantially limit his overall daily functioning. 3 Rather, Appellant’s

arguments concentrate on how his impairments prevent him from performing the

specific duties of his assigned job. See Appellant’s Br. at 18. His assertions,

even taken in the aggregate, thus do not meet the evidentiary requirements

outlined by the Supreme Court in Toyota.

      For the foregoing reasons we find that Appellant failed to make the

necessary showing of substantial impairment as outlined in Lusk and Toyota, and




      3
       Velarde attempts to point to Dr. Dall’s diagnosis of March 27, 1995, to
demonstrate “substantial impairment.” Dr. Dall found that Velarde should not
twist or reach above his shoulder with his right arm, but could occasionally stoop,
squat, crouch and reach at shoulder level. Further, Dr. Dall’s diagnosis reports
that Velarde could lift between 11-20 pounds occasionally. Appellant’s Br. at 19,
Appellee’s App. at 172.

       These findings do not create a genuine issue of material fact regarding
whether Velarde’s impairments substantially limit major life activities. The
EEOC Guidelines are clear that in determining substantial impairment, the
duration of such impairment must be considered. 29 C.F.R. §§ 1630.2(j)(2)(ii)-
(iii). Specifically, the Guidelines state that the impairment’s impact must be
permanent or long term. Id.; see also Toyota, 534 U.S. at 198. The impairments
identified by Dr. Vall lasted less than two months. On May 25, 1995, Dr. Lamb –
Velarde’s own doctor – released him for work, stating that “[Velarde] is released
to return to work for light duty. He should not lift repetitively or more that 25
lbs.” Appellee’s Br. at 6, Appellant’s App. at 107. Thus we find that whatever
additional impairments Velarde may have exhibited on March 27, 1995 apparently
subsided only two months later.

                                          8
thus we AFFIRM the district court’s grant of summary judgement.



                                                ENTERED FOR THE COURT



                                                Michael W. McConnell
                                                Circuit Judge




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