                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                    February 20, 2007
                            FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                        Clerk of Court

    FR ED CO RLEY ,

             Plaintiff-Appellant,

    v.                                                   No. 05-7137
                                                   (D.C. No. 04-CV-482-W )
    D EPA RTM EN T O F V ETER ANS                        (E.D. Okla.)
    AFFA IRS, by and through the
    Honorable A nthony J. Principi,
    Secretary of V eterans Affairs,

             Defendant-Appellee.



                            OR D ER AND JUDGM ENT *


Before KELLY, L UC ER O, and HA RTZ, Circuit Judges.




         Fred Corley appeals the district court’s grant of summary judgment in favor

of his former employer, the Department of Veterans Affairs (VA), on his claims

for disability discrimination under the Rehabilitation Act of 1973, 29 U.S.C.

§ 791, and for constructive discharge. He alleges that he has a physical


*
      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
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata and collateral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.
impairment–a seizure disorder–that substantially limits one or more major life

activities, and that he is therefore disabled under the Rehabilitation Act. He

claims that the VA failed to accommodate his disability and that he was

constructively discharged when he chose to pursue retirement benefits rather than

accept a demotion to a lower-paid position. W e affirm.

                                  I. Background

      M r. Corley began employment with the VA in 1992. At all times relevant

to this case, he was an Education Case M anager (ECM ). His job was to

communicate w ith veterans about their education benefits via telephone, email,

and faxes, as w ell as in person either at the VA office or during town-hall

meetings. ECM s were required to be available to answer telephone calls from

veterans for a large portion of their work days; as of M arch 2003 the minimum

time they were to be available was six hours per day. Any inquiry regarding a

specific veteran’s education benefits required use of a computer to access the

information.

      M r. Corley suffered the first of two major seizures in 2000, while stationed

in Turkey on military duty. In January 2001 he suffered a second major seizure at

home. He reported to Dr. Edward M oroney, his primary care physician at the

M uskogee, Oklahoma, VA M edical Center (VAM C), that he was having

seizure-like activity, primarily while he slept, as evidenced by urinary

incontinence. Dr. M oroney referred M r. Corley to a VAM C neurologist and

                                         -2-
advised that he should not ship out to Jordan with his Air National Guard unit.

M r. Corley began seeing Dr. L. Keith Simmons, a private neurologist, in

connection with his seizure activity.

      On February 1, 2001, Dr. M oroney made the following notation in

M r. Corley’s medical file:

      The above referenced individual has developed a seizure disorder
      which is presently[] controlled [with] medication. However his
      stress should be kept at a minimum to prevent breakthro[u]gh seizure
      activity. He should not be required to spend more than 4 h[ou]rs/day
      on the telephone.

Aplt. App., Vol. I at 109. M r. Corley presented this document to Phyllis Curtis,

one of his supervisors at the VA, on M arch 22, 2001. Beginning that day he

started assisting with training new employees for four hours per day, apparently

reducing his available telephone time to at most four hours. A lthough the need to

train new employees w as temporary, M r. Corley had indicated that possibly

something could be done medically to control his seizures, so M s. Curtis

understood that M r. Corley would again be able to perform his regular duties once

the temporary assignment was completed.

      On M arch 27, in describing his medical history to Dr. M adhusudan Koduri,

a psychiatrist, M r. Corley reported that once a week or more he was having

seizures, during which he sometimes passed out. He also told Dr. Koduri that he

was not driving. There are no further notations in M r. Corley’s medical records

regarding seizure activity for almost eight months. In November 2001 he

                                         -3-
reported to Dr. Simmons an increase in the frequency of his seizures since A ugust

but indicated that he had not had any further generalized convulsions. The

seizures occurred more at night and were evidenced by urinary incontinence. He

also had a few episodes at work when he became glassy-eyed, and on occasion the

computer screen would induce a seizure. Dr. Simmons noted that M r. Corley was

on a modified work schedule and recommended that this schedule continue until

the seizures were controlled.

      Five months later, in April 2002, M r. Corley reported a decreased

frequency of seizure symptoms to Dr. Koduri. In June he reported to

Dr. M oroney that he was having seizures once a week during the night.

Dr. M oroney noted that Dr. Simmons was changing M r. Corley’s seizure

medication. Dr. Simmons provided M r. Corley with a “return to work” form, at

his request, which w as effective June 17, 2002. The return-to-work form

restricted only M r. Corley’s use of hazardous equipment. The form also indicated

that his seizure medication was being adjusted, which could initially result in

increased seizures. The parties dispute whether the hazardous-equipment

limitation was the only limitation after June 17, 2002, or was in addition to the

previous four-hour limitation on telephone work. After M r. Corley gave the

return-to-w ork form to M s. Curtis, he continued to work the modified schedule

limiting his telephone time to four hours per day. In August 2002 he reported to

D r. M oroney that he had had no more seizures after switching medications. He

                                         -4-
asked Dr. M oroney for a letter stating that he was fit for duty with the Air

National Guard. That same month, M r. Corley advised D r. Koduri that his last

seizure had been in M ay.

      In December 2002 M s. Curtis asked M r. Corley to provide updated

documentation of his medical condition. M r. Corley sent an email to

Dr. Simmons’s office on December 18, asking for a currently dated copy of

Dr. Simmons’s previous note limiting him to four hours of telephone work per

day. He told Dr. Simmons that he had had an increase in seizure activity, which

seemed to be more prevalent with seasonal or weather changes. He also indicated

that he had suffered a midsized seizure at work the previous week and another

one the night before. Dr. Simmons faxed back the June 2002 return-to-work form

containing only the restriction on use of hazardous equipment, with a note to

continue that limitation. M r. Corley did not provide this return-to-work form to

the VA. Instead, upon receiving Dr. Simmons’s fax, he sent another email to

Dr. Simmons’s office on December 19, asking once again for a note limiting his

telephone time to four hours per day. Dr. Simmons did not respond. The next

day, December 20, M r. Corley described his seizure spells to Dr. Koduri as

intermittent and less intense. He also told Dr. Koduri that he had been playing

football occasionally.

      On December 31 M r. Corley contacted Dr. Simmons again, this time asking

the doctor to rescind the prior statement limiting him to four hours of telephone

                                          -5-
time and to put him back on a regular work schedule. Dr. Simmons released

M r. Corley to a regular work schedule beginning January 2, 2003, with a note to

avoid activity that might be hazardous if he loses consciousness. Once again

M r. C orley did not provide this new return-to-work form to the VA.

      On January 10, 2003, M s. Curtis gave M r. Corley a deadline of January 23

to provide an updated status report from his doctor. She indicated that if he failed

to provide the updated information, it would be assumed that he could perform

the full duties of an EC M and his schedule would be adjusted accordingly. On

January 28, having received no updated documentation, M s. Curtis returned

M r. Corley to regular duties. On M arch 18 he was placed on a

performance-assistance plan (PA P) because his average daily available telephone

time in January and February had been less than six hours. During M arch and

April 2003 he sought medical attention for two knee injuries that he had received

playing semiprofessional football. At the April appointment he reported to

Dr. M oroney that he continued to have nocturnal urinary incontinence, but it had

not increased in frequency since he had started playing semiprofessional football.

On M ay 5 he was taken off the PAP after improving his daily average telephone

time to meet the ECM performance standard. In June he sought medical attention

again, this time for pain in his arm related to moving furniture the day before.

The record suggests that at that appointment he did not report any increase in

seizure activity.

                                         -6-
      On June 29, 2003, M r. Corley signed an application form seeking disability

retirement. He saw Dr. Simmons about a w eek later, after not having seen him

for approximately one year. He reported to Dr. Simmons that his seizures had

been doing well until a change in his work schedule. He was now experiencing

more frequent seizures and was under a lot of stress. On July 16 he saw

Dr. M oroney, reporting continued nocturnal seizures characterized by shaking,

urinary incontinence, and post ictal stupor. He indicated that the day after a

seizure he was lethargic and that he had been sleeping more. He had not sought

medical attention at the V AM C for his seizure activity for over a year.

      On July 21, 2003, during a meeting with Francie W right, the supervisor of

his division, M r. Corley submitted a July 15 statement from Dr. Simmons limiting

him to four hours of telephone time per day. In response, M s. W right proposed

possible alternative computer work he could do for part of the day, but M r. Corley

clarified that it was really the computer, and not the telephone, that caused him

problems. He indicated that he would submit another doctor’s statement saying

so. That same day, he contacted an equal employment opportunity (EEO)

counselor at the VA to allege disability discrimination by the VA. He later told

the EEO counselor that M s. W right had informed him on July 21 that she would

put him on a modified work schedule only until October 30, after which he would

have to return to his normal ECM duties or take another position that would be a




                                          -7-
demotion. The next day, July 22, he submitted to M s. W right a return-to-work

form from Dr. Simmons, limiting his use of a computer to four hours per day.

      M s. W right placed M r. Corley on a modified work schedule on July 30,

limiting his computer time to four hours per day. Under the modified schedule

the remainder of the day he would be asked to do work that did not involve using

a computer, but did involve using a telephone. M s. W right indicated that this

modified schedule would be limited to 90 days because the noncomputer work

was at a lower pay grade than his ECM position. After 90 days he would be

expected to return again to his regular ECM duties.

      M r. Corley was awarded full disability-retirement benefits effective

October 3, 2003. He stopped having seizures in August or September of 2004 and

was seizure-free until at least July 2005.

      M r. C orley filed a complaint against the VA on October 28, 2004. On

August 25, 2005, the VA moved for summary judgment on his claims for

disability discrimination, retaliation, and constructive discharge. Ruling that

M r. Corley’s evidence of intermittent difficulties with major life activities did not

establish an impairment that was sufficiently severe and permanent to be a

disability, the district court 1 granted the VA’s motion on the Rehabilitation Act




1
       The parties consented to jurisdiction of a magistrate judge. All references
to the district court’s order pertain to the November 22, 2005, Order of the
magistrate judge.

                                             -8-
claims. The district court also granted summary judgment on M r. Corley’s claim

for an unpaid performance bonus, which was not addressed in the VA’s motion.

On appeal M r. Corley challenges only the summary judgment on his claims for

disability discrimination and constructive discharge.

                                   II. Discussion

                              A. Standard of Review

      W e review the district court’s grant of summary judgment de novo. See

Rakity v. Dillon Cos., 302 F.3d 1152, 1157 (10th Cir. 2002). 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 a matter of law.” Fed. R. Civ. P. 56(c). “A fact is ‘material’ if,

under the governing law, it could have an effect on the outcome of the lawsuit. A

dispute over a material fact is ‘genuine’ if a reasonable jury could find in favor of

the non moving party on the evidence presented.” Rakity, 302 F.3d at 1157

(citation omitted). W e view the evidence, and draw reasonable inferences

therefrom, in the light most favorable to the nonmovant. Id. at 1160.

                        B. Record on Summary Judgment

      W e address first a preliminary issue raised by the VA regarding the extent

of the record on summary judgment. The VA contends that M r. Corley

improperly included the entire transcript of Dr. Simmons’s deposition in the

                                         -9-
Appellant’s Appendix. W e agree with the VA that the full transcript was not

before the district court on summary judgment. “[T]he only proper function of a

court of appeals is to review the decision below on the basis of the record that

was made before the district court.” Allen v. M innstar, Inc., 8 F.3d 1470, 1474

(10th Cir. 1993) (internal quotation marks omitted). Therefore, we will review

only the pages of the Simmons deposition transcript that were before the district

court: A ppellant’s Appendix, Volume I at 323-325 and Volume II at 354-356.

The remaining pages of that transcript–Appellant’s Appendix, Volume II at

364-405–are stricken from the record. See Aero-M edical, Inc. v. United States,

23 F.3d 328, 329 n.2 (10th Cir. 1994).

                           C. Disability Discrimination

      To establish a prima facie case of disability discrimination, M r. Corley was

required to show that (1) he was a disabled person within the meaning of the

Rehabilitation Act; (2) he was otherwise qualified for the job; and (3) he was

discriminated against because of his disability. See Woodman v. Runyon,

132 F.3d 1330, 1338 (10th Cir. 1997). 2 The Rehabilitation Act defines the term

disability in pertinent part as “a physical or mental impairment that substantially



2
       Woodman noted that the same standard for a prima facie case applies in
actions brought under the Americans W ith Disabilities Act (ADA). 132 F.3d at
1338. The standard applied under the ADA is also used to determine whether an
act of discrimination violates the Rehabilitation Act. See 29 U.S.C. § 791(g); 29
C.F.R. § 1614.203(b). W e therefore rely on cases applying the A DA in the course
of this order and judgment.

                                         -10-
limits one or more major life activities.” 29 U.S.C. § 705(9)(B). 3 Although the

VA does not dispute that M r. Corley has a seizure disorder, a physical impairment

alone does not make one disabled. The impairment must also substantially limit a

major life activity. See id.; Toyota M otor Mfg., Ky., Inc. v. W illiams, 534 U.S.

184, 195 (2002).

      The regulations issued by the Department of Health and Human Services

under the Rehabilitation Act define major life activities as “functions such as

caring for one’s self, performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning, and working.” 45 C.F.R. § 84.3(j)(2)(ii). This list,

however, is not exhaustive. See Poindexter v. Atchison, Topeka & Santa Fe Ry.

Co., 168 F.3d 1228, 1231 (10th Cir. 1999). The Equal Employment Opportunity

Commission (EEOC) has issued regulations further defining disability and

substantially limits. Because the parties do not dispute their application in this

case, we will assume that they should be applied here. See Toyota, 534 U.S. at

194. Under these regulations substantially limits means:

      (I) U nable 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,



3
      M r. Corley does not allege discrimination based on either “a record of such
an impairment” or “being regarded as having such an impairment,” 42 U.S.C.
§ 12102(2), both of which are also included in the definition of disability under
the Rehabilitation Act, see 29 U.S.C. § 794(d); M cGeshick v. Principi, 357 F.3d
1146, 1150 (10th Cir. 2004).

                                        -11-
      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 EEOC regulations list three factors to be

considered in determining whether an individual is substantially limited in a

major life activity: “(I) The nature and severity of the impairment; (ii) The

duration or expected duration of the impairment; and (iii) The permanent or long

term impact, or the expected permanent or long term impact of or resulting from

the impairment.” Id. § 1630.2(j)(2). “‘Substantially’ . . . suggests ‘considerable’

or ‘to a large degree.’” Toyota, 534 U.S. at 196 (brackets omitted). Thus, “[t]o

be substantially limited in a major life activity, ‘an individual must have an

impairment that prevents or severely restricts the individual from doing activities

that are of central importance to most people’s daily lives,’” and the impact of the

impairment must “‘be permanent or long term.’” M cGeshick v. Principi, 357 F.3d

1146, 1150 (10th Cir. 2004) (quoting Toyota, 534 U.S. at 198).

      The district court granted summary judgment in favor of the VA on

M r. Corley’s disability-discrimination claim after concluding that his seizure

disorder did not substantially limit any major life activity and that therefore he

was not disabled under the Rehabilitation Act. Based on our de novo review of

the record on appeal, we agree with the district court.




                                         -12-
                              1. M ajor Life Activities

      First, we must determine which of M r. Corley’s major life activities are at

issue. A plaintiff must articulate with precision the major life activity affected

by his impairment. See Poindexter, 168 F.3d at 1232. On appeal M r. Corley

contends that 15 different major life activities w ere substantially limited by his

seizure disorder. But his argument below and the district court’s decision

addressed only seven alleged major life activities. This court will not consider

an issue not passed upon below. See W alker v. M ather (In re Walker), 959 F.2d

894, 896 (10th Cir. 1992). Nor will we review an issue not raised in appellant’s

opening brief. See State Farm Fire & Cas. Co. v. M hoon, 31 F.3d 979, 984 n.7

(10th Cir. 1994). Therefore, we will consider only the five activities that

M r. Corley raised both in his opening brief on appeal and before the district

court: sleeping, caring for his children, grocery shopping, operating machinery

(such as a lawn mower), and working.

      W hether an activity alleged to be affected by an impairment is a “major life

activity” under the Rehabilitation Act is a question of law for the court. See

Doebele v. Sprint/United M gmt. Co., 342 F.3d 1117, 1129 (10th Cir. 2003).

“‘M ajor’ in the phrase ‘major life activities’ means important. ‘M ajor life

activities’ thus refers to those activities that are of central importance to daily

life.” Toyota, 534 U .S. at 197 (citation omitted). “A ‘major life activity’ is a

basic activity that the average person in the general population can perform with

                                          -13-
little or no difficulty.” Pack v. Kmart Corp., 166 F.3d 1300, 1305 (10th Cir.

1999). The touchstone of a major life activity is its significance. See Poindexter,

168 F.3d at 1231.

      The Rehabilitation Act regulations include working as a major life activity.

See 45 C.F.R. § 84.3(j)(2)(ii). And we have held that sleeping is a major life

activity. See Pack, 166 F.3d at 1305. M r. Corley cites no authority to support his

contention that operating machinery, caring for his children, and grocery shopping

are major life activities. See Phillips v. Calhoun, 956 F.2d at 949, 953-54

(10th C ir. 1992) (a party must support its argument with legal authority). The V A

asserts, the district court concluded, and we agree, that operating machinery is not

a major life activity. See Weber v. Strippit, Inc., 186 F.3d 907, 914 (8th Cir. 1999)

(mowing the law n not a major life activity). It is hardly of central importance in

daily life. The district court did not decide whether caring for one’s children or

grocery shopping are major life activities. But we do not believe that either

activity standing alone is sufficiently significant to qualify as a major life activity

as compared to the enumerated major life activities under the Rehabilitation Act

regulations. See 45 C.F.R. § 84.3(j)(2)(ii). Again, neither can be said to be

central to daily life. See Poindexter, 168 F.3d at 1231; see also Krauel v. Iowa

M ethodist M ed. Ctr., 95 F.3d 674, 677 (8th Cir. 1996) (caring for others is not a

major life activity); Novak v. Principi, 442 F. Supp. 2d 560, 567 (N.D. Ill. 2006)

(same); Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 643 (2d Cir. 1998)

                                          -14-
(mall shopping is not a major life activity); Turner v. Sullivan Univ. Sys., Inc.,

420 F. Supp. 2d 773, 784 (W .D. Ky. 2006) (inability to shop for groceries by

oneself is not a substantial limitation on a major life activity); cf. Emory v.

AstraZeneca Pharmaceuticals LP, 401 F.3d 174, 181 (3d Cir. 2005) (considering

ability to care for one’s children as part of major life activity of performing

manual tasks). Thus, we will consider only whether M r. Corley’s seizure disorder

substantially limited his two identified major life activities: sleeping and working.

(We add, however, that our discussion of these two activities will strongly suggest

that M r. Corley’s other alleged major life activities were not substantially limited.)

           2. Substantial Limitation of M ajor Life Activity of Sleeping

      M r. Corley asserts that the district court made numerous errors in

concluding that his sleeping was not substantially limited by his seizure disorder.

He argues that the record does not support the court’s conclusions that his seizures

and their effects were sporadic, and he claims error in the court’s characterization

of his problems with sleeping as intermittent and not long-term or severe. M ore

specifically, he argues that the record fails to support the court’s determination

that he experienced no seizure activity for extended periods of time after receiving

medication. He also asserts that the court incorrectly based its

no-substantial-limitation conclusion solely on the effects of the two large seizures

that he suffered.




                                          -15-
      M r. Corley makes tw o different arguments in support of his claim that his

seizure disorder was severe and substantially limited his sleeping. First, he asserts

that he experienced frequent, regular seizures over an extended period of time,

with resulting permanent or long-term disturbances and substantial effects on his

ability to sleep. Alternatively, he contends that evidence of the effects of his

seizures during periods of increased seizure activity supports the conclusion that

his impairment was severe and substantially limited his ability to sleep. W e

conclude that his evidence fails to demonstrate a triable issue of fact concerning

whether his seizure activity was severe and whether its effects on his ability to

sleep were permanent or long-term.

            a. Evidence of Frequent Seizures O ver Extended Period

        In his appeal brief M r. Corley repeatedly refers to a 2½-year period during

which he experienced one or more seizures per w eek. These claims of weekly

seizures over an extended period of time, however, are not supported by any

citation to the record. See Rakity, 302 F.3d at 1160 (appellant bears responsibility

of providing essential references to record to carry burden of establishing a triable

fact issue). And the record indicates otherwise. As M r. Corley admits, he was

seizure-free for several months during this 2½ -year period, from either M ay or

June 2002 to August of that year. Although he reported to his doctors having

weekly seizures in M arch 2001 and June 2002, and increases in seizure activity in

November 2001 and July 2003, at other times he reported that his seizures were

                                         -16-
decreasing in frequency (April 2002) or were intermittent but less intense

(D ecember 2002).

      Nor did M r. Corley ever testify to having frequent seizures over an extended

period of time that interfered with his ability to sleep. W hen asked how many

total seizures he had experienced, he testified that from 1992 until July 13, 2005

(the date of his deposition), there were 40-50 occasions when he had a seizure that

caused him to sleep more than usual. Two of the 40-50 seizures were major ones,

after which he slept for up to 12 additional hours. Following the other, nonmajor

seizures he slept for an additional three to four hours, or through the morning and

into the afternoon. Even if the period during which M r. Corley experienced the

40-50 seizures did not begin until January 2001, when he first reported seizure

activity to the VAM C, 4 and ended in August or September 2004, when he testified

that he had stopped having seizures altogether, he still would have suffered, on

average, only approximately one seizure per month based on his own testimony,

with the resulting effects upon his sleep similarly intermittent.

      M r. Corley is correct that, apart from the period from M ay to August 2002,

there is no evidence to support the district court’s conclusion that he was not

having seizures at all. But neither is the converse true: there is no reasonable




4
      At least one of his major seizures, however, occurred before January 2001.
M r. Corley testified that the first of two major seizures he experienced was w hile
he was deployed with his National Guard unit in Turkey in 2000.

                                         -17-
inference from the evidence that his seizures occurred regularly on a weekly basis

for a num ber of years. N otw ithstanding the arguments in his brief, his own

testimony belies that conclusion. It was his burden to establish the frequency of

his impairment. See Rakity, 302 F.3d at 1157-58 (when nonmoving party bears

burden of proof at trial on dispositive issue, it must go beyond pleadings and

designate specific facts to survive summary judgment). Viewing the medical

evidence and M r. Corley’s testimony in the light most favorable to him, the record

does not establish that on a weekly basis during the last 2½ years of his

employment at the VA he experienced seizures causing him to sleep more than

usual. W e agree with the district court that the evidence establishes only a

sporadic or intermittent impairment.

               b. Evidence of Periods of Increased Seizure Activity

      Alternatively, M r. Corley argues that the district court ignored his evidence

of periods of increased seizure activity, which, he contends, supports the

conclusion that his impairment was severe and substantially limited his major life

activity of sleeping. W e do not believe that the court ignored this evidence. W e

conclude, as did the district court, that the evidence is insufficient to establish a

triable fact issue regarding whether M r. Corley’s impairment was of such severity

and duration that it resulted in permanent or long-term impacts on his sleeping.

      M r. Corley testified that during periods of increased seizure activity he

would have three to five seizures per w eek, after which he w ould sleep longer,

                                          -18-
resulting in disruption to his sleep patterns. His testimony regarding increased

seizure activity focused on the period from January 2003 until the time of the

alleged discrimination in July 2003. He initially testified that during that period

he missed work a minimum of one day per week, and as many as two or three

days, as a result of his extended sleeping following seizures during the night. But

the evidence reflects that in January 2003 Dr. Simmons provided him, at his

request, w ith a return-to-w ork form restoring him to his regular w ork schedule.

M oreover, on cross-examination he testified that he began playing

semiprofessional football in December 2002 and he acknowledged telling

Dr. M oroney four months later, in April 2003, that his seizure symptoms had not

increased since he had begun playing semiprofessional football. He ultimately

testified that his seizure activity did not increase until April and M ay 2003. In

July 2003 he reported seizure activity to Dr. M oroney and more frequent seizures

to D r. Simmons.

      The alleged discriminatory conduct–telling M r. Corley that his new

modified work schedule would be offered for only 90 days–occurred no later than

July 30, 2003. Thus, according to M r. Corley’s own testimony, as clarified on

cross-examination, his only relevant “period of increased seizure activity” began

in April or M ay 2003 and appeared to continue into July 2003. There is no

evidence regarding how long (or whether) that period of increased seizure activity




                                          -19-
continued after July. (We do know that M r. Corley was seizure-free as of August

or September 2004.)

      M r. Corley’s evidence certainly establishes that at times he experienced

more frequent seizure activity. And in the case of the four months before the

alleged discriminatory act, his testimony indicates that he w as having more

seizures than in the preceding months of that year. But the evidence as a whole,

including his own testimony about the total number of seizures he experienced

during his employment with the VA, does not establish a triable fact issue

regarding whether his impairment substantially restricted his sleeping. There is

insufficient evidence to support his contention that his impairment resulted in

permanent, or even long-term, effects on his ability to sleep as compared to the

average person in the general population. As the district court concluded, such

intermittent effects on a major life activity are insufficient to establish an

impairment that qualifies as a disability. See Pack, 166 F.3d at 1306 (affirming

grant of judgment as a matter of law when plaintiff’s evidence of episodes of sleep

disruption failed to establish her problems were severe, long-term, or had a

permanent impact); see also M cWilliams v. Jefferson County, 463 F.3d 1113,

1116-17 (10th Cir. 2006) (affirming summary judgment when evidence showed

only intermittent depressive episodes that caused difficulty sleeping and getting

along w ith co-workers) Croy v. Cobe Labs., Inc., 345 F.3d 1199, 1204 (10th Cir.

2003) (affirming summary judgment when plaintiff established only that she was

                                          -20-
often tem porarily unable to function as the average person would, due to multiple

sclerosis).




                                        -21-
              c. Evidence of Classification of M r. Corley as Disabled
                 by K ansas Department of Rehabilitative Services

      M r. Corley also argues that the district court improperly ignored the

evidence that he was classified as “disabled” in 2004 by the Kansas Department of

Rehabilitative Services. In opposition to summary judgment, he submitted

documents, labeled as Exhibit A, purporting to be a certificate of eligibility from

Kansas Rehabilitation Services and a brochure titled Rehabilitation Services

Handbook of Services. He asserted in the district court that it was undisputed that

he had received services from the State of Kansas Department of Rehabilitative

Services as a “qualified individual with a disability.” The VA did not dispute that

M r. Corley received services, but argued that Exhibit A was inadmissible. On

appeal the VA asserts that the district court properly excluded from the record and

did not consider Exhibit A, but it includes no citation to the record to support that

contention.

      W e do not reach the question of the admissibility of Exhibit A for

summary-judgment purposes because we hold that it is not relevant to the

determination whether M r. Corley was disabled at the time of the alleged

discrimination. As M r. Corley asserts in his appeal brief, his “impairments should

be examined at the time the discrimination took place.” Aplt. Br. at 12. The

Kansas certification is not temporally relevant because it was issued nearly a year

after the alleged discrimination. “The determination as to whether an individual is



                                         -22-
a ‘qualified individual with a disability’ must be made as of the time of the

employment decision.” Cisneros v. Wilson, 226 F.3d 1113, 1129 (10th Cir. 2000)

(internal quotation marks omitted), overruled on other grounds by Bd. of Trs. of

Univ. of Ala. v. Garrett, 531 U.S. 356 (2001). In Cisneros we noted that evidence

of the plaintiff’s inability to work at the time of the law suit was not relevant to

whether she was a qualified individual with a disability at the time of the alleged

discrimination. Id. at 1129 n.12. Likewise, a showing that M r. Corley was

disabled in June 2004 is not relevant to establishing whether he was disabled in

July 2003.

                 d. Factual Dispute Regarding W ork Restrictions

      Finally, M r. Corley contends that the facts are in dispute regarding whether

the work restrictions placed on him by Dr. Simmons in June 2002 included only

avoiding hazardous equipment, or also continued the previous limitation of four

hours of telephone work per day. But we do not believe that this dispute involves

any material fact which could preclude summary judgment. Even assuming that

M r. Corley’s version of his work restrictions as of June 2002 were correct, that

fact is not relevant to whether his seizure disorder substantially limited his major

life activity of sleeping. See Rakity, 302 F.3d at 1157 (“A dispute over a material

fact is ‘genuine’ if a reasonable jury could find in favor of the nonmoving party on

the evidence presented.”). As we have concluded, M r. Corley’s own testimony

regarding the duration and severity of his seizure activity defeats his claim.

                                          -23-
           3. Substantial Limitation of M ajor Life Activity of W orking

      “W ith respect to the major life activity of w orking[,] . . . [t]he 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); see Siemon v. AT&T Corp., 117 F.3d 1173, 1176 (10th Cir.

1997). The EEOC regulation states that “class of jobs” refers to “jobs utilizing

similar training, knowledge, skills or abilities” within “the geographical area to

which the [plaintiff] has reasonable access,” 29 C.F.R. § 1630.2(j)(3)(ii)(A)-(B);

and “broad range of jobs in various classes” refers to “jobs not utilizing similar

training, knowledge, skills or abilities, within that geographical area,” id.

§ 1630.2(j)(3)(ii)(C). Thus, to be substantially limited in the major life activity of

working,

      one must be precluded from more than one type of job, a specialized
      job, or a particular job of choice. If jobs utilizing an individual’s
      skills (but perhaps not his or her unique talents) are available, one is
      not precluded from a substantial class of jobs. Similarly, if a host of
      different types of jobs are available, one is not precluded from a
      broad range of jobs.

Sutton v. United Air Lines, Inc., 527 U.S. 471, 492 (1999).

      M r. Corley asserts that the district court erred in concluding that his claim

failed because (1) he did not present evidence that he was disqualified from other

jobs in his geographical area requiring the same skills and abilities that he brought



                                          -24-
to the VA, and (2) he did not produce evidence of jobs in his geographical area to

which he had access, or the number and type of jobs demanding similar training.

He argues that the evidence of his limited ability to perform certain activities is

sufficient to establish a triable fact issue regarding whether he was substantially

limited in working. Specifically, he claims that the evidence establishes that as a

result of his seizure disorder he was foreclosed from jobs involving any of the

follow ing activities: driving, operating machinery (including using a lawn

mower), childcare, telephone or computer work for more than four hours per day,

military service, working at heights, maintenance, and housekeeping.

      M r. Corley misapprehends his burden as the plaintiff. First, he characterizes

his enumeration of limitations as “substantial,” implying that by its sheer volume

the list establishes that he is substantially limited in working. But he is not

substantially limited in the major life activity of working if either (1) “jobs

utilizing [his] skills (but perhaps not his . . . unique talents) are available” or

(2) “a host of different types of jobs are available.” Sutton 527 U.S. at 492. The

limitations he lists hardly compel the conclusion that either (1) or (2) (much less

both) has been foreclosed. Second, M r. Corley chides the district court for not

making findings regarding what skills and abilities he brought with him to the VA.

But he did not point the district court to any evidence regarding his relevant skills

that it should have considered. He likewise fails to point this court to any portion

of the record indicating what those specific skills w ere. Instead he simply

                                           -25-
concludes, without specification, that his relevant skill sets are those of an ECM

and the skills he acquired in the military. Third, M r. Corley fails to point to

evidence in the record regarding the availability of jobs for him in his geographic

area. Instead, he contends that the VA was required to perform a survey of

available jobs at the VA and he criticizes it for failing to do so. As a federal

employer the VA would have been required reasonably to accommodate him by

identifying positions within the VA or other agencies in which he could have

functioned despite his disability. But that duty does not arise until he establishes

that he has a disability. See Woodman, 132 F.3d at 1337-38 & n.6 (describing

heightened duty of federal employers to provide reasonable accommodation). It

was not the VA’s burden to come forward with evidence of the number and types

of jobs available or unavailable to M r. Corley in his geographic area.

      The requirement that the plaintiff produce the necessary evidence “‘is not

meant to require an onerous evidentiary showing.’” EEOC v. Heartway Corp.,

466 F.3d 1156, 1164 (10th Cir. 2006) (quoting EEOC Compliance M anual § 902.4).

M r. Corley was not required to present evidence of a precise number of jobs from

which he was disqualified because of his impairment. But in his circumstances he

did need to present “evidence of general employment demographics and/or of

recognized occupational classifications that indicate the approximate number of

jobs (e.g., ‘few,’ ‘many,’ ‘most’) from which [he] would be excluded.” Id.

(internal quotation marks omitted). See Rakity, 302 F.3d at 1162 (plaintiff failed to

                                          -26-
provide evidence addressing his vocational training, relevant geographic area, or

number and type of jobs from which he was disqualified); Bolton v. Scrivner, Inc.,

36 F.3d 939, 943-44 (10th Cir. 1994) (same). M r. Corley produced no such

evidence.

      M r. Corley argues that the district court failed to consider his evidence that

he missed work frequently after a seizure because he could not wake up, and that

this limitation would apply to all job types in all geographic areas. But evidence of

frequent unscheduled absences is not sufficient to establish a substantial limitation

on the major life activity of working. See Croy, 345 F.3d at 1204. Furthermore, as

we have concluded based on his own testimony regarding the nature and extent of

his seizures and the prolonged sleeping they triggered, his impairment was not

sufficiently severe, permanent, or long-term to limit substantially his other

identified major life activity of sleeping. W e reach the same conclusion regarding

the major life activity of working. W e agree with the district court that he failed to

present sufficient evidence to support his claim that his impairment substantially

limited his ability to work.

      W e hold that M r. Corley failed to establish a triable issue of fact on the first

element of a prima facie case of disability discrimination: that he was a disabled

person.




                                          -27-
                            B. Constructive Discharge

      “Constructive discharge occurs when the employer by its illegal

discriminatory acts has made working conditions so difficult that a reasonable

person in the employee’s position would feel compelled to resign.” Sanchez v.

Denver Pub. Sch., 164 F.3d 527, 534 (10th Cir. 1998) (internal quotation marks

omitted, emphasis added). M r. Corley has failed to establish that he had a

disability. Accordingly, his “constructive discharge claim based on disability

discrimination [under the Rehabilitation Act] necessarily fails.” Wells v. Shalala,

228 F.3d 1137, 1146 (10th Cir. 2000); see also Lanm an v. Johnson County, Kan.,

393 F.3d 1151, 1158 (10th Cir. 2004) (declining to address constructive discharge

when plaintiff failed to establish disability under the ADA).

      The judgment of the district court is AFFIRMED.



                                                   Entered for the Court


                                                   Harris L Hartz
                                                   Circuit Judge




                                        -28-
