                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                              March 29, 2006
                                     TENTH CIRCUIT                          Elisabeth A. Shumaker
                                                                               Clerk of Court

 MARY ANN LAWLER,

           Plaintiff-Appellant,
 v.                                                         No. 04-5132
                                                    Northern District of Oklahoma
 QUIKTRIP CORPORATION,                                (D.C. No. 03-VC-296-P)

           Defendant-Appellee.




                                  ORDER AND JUDGMENT*


Before HENRY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and MURPHY,
Circuit Judge.


       Mary Ann Lawler, the plaintiff, was hired by QuikTrip Corporation as a part-time

clerk in 1992, and she continued in that position until 1998, when she accepted a full-time

position as a relief clerk. On November 22, 2000, QuikTrip terminated her employment.

On May 2, 2003, plaintiff brought suit against QuikTrip in the United States District

Court for the Northern District of Oklahoma, alleging discrimination under (1) the

Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”); (2) the Age



       *
         This order and judgment is not binding precedent, except under the doctrines of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.
Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (“ADEA”); (3) the

Oklahoma Anti-Discrimination Act, Okla. Stat. tit. 25, § 1101, et seq. (“OADA”); and (4)

for violation of the Oklahoma Public Policy/Burk Tort Act. After answering the

complaint, and engaging in discovery, QuikTrip moved for summary judgment on all of

plaintiff’s claims. Lawler thereafter dismissed her ADEA and Oklahoma Public Policy

claims. Accordingly, the only claims remaining before the district court were plaintiff’s

claims under the ADA and OADA. After hearing, the district court granted QuikTrip’s

motion for summary judgment on plaintiff’s ADA claim, and then dismissed plaintiff’s

remaining claim based on OADA, commenting, in connection with the latter, that “the

court declines to exercise supplemental jurisdiction because all claims from which the

original jurisdiction arose have been dismissed. 28 U.S.C. § 1367(c)(3).” Plaintiff

thereafter filed a lengthy Motion to Reconsider, in which she, inter alia, sought to

introduce into evidence certain exhibits which she claimed were inadvertently omitted

from her response to QuikTrip’s motion for summary judgment. The district court denied

plaintiff’s motion to reconsider. The plaintiff now appeals the order of the district court

granting summary judgment to QuikTrip on plaintiff’s claim based on the ADA, i.e.,

termination based on disability.

       In its order granting summary judgment to QuikTrip on plaintiff’s ADA claim, the

district court summarized the background facts out of which the present controversy arose

as follows:


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      Mary Ann Lawler (“Plaintiff”) was hired by QuikTrip
      Corporation (“Defendant”) in 1992 as a clerk. Plaintiff was
      originally hired as a clerk in her daughter’s store located in
      Bartlesville, OK, and she was eventually transferred to Tulsa
      to serve as a relief clerk---one who works in different stores
      dependent upon need. Throughout her time with QuikTrip,
      Plaintiff was permitted to schedule her work schedule around
      her class schedules and spending time with her grandson.

      On June 5, 2000, Plaintiff presented a physician’s note to
      Defendant’s personnel manager, J. D. Johnson, which stated
      that she was disabled. The note stated, “Patient is totally
      temporarily disabled until July 3, 2000 due to underlying
      arthritis.” When Johnson received this note, he placed
      Plaintiff in a light duty position with QuikTrip. On July 6,
      2000, Johnson was presented another physician’s note that
      stated Plaintiff was “temporarily partially disabled due to
      arthritis. Light duty for six weeks until August 21, 2000.” As
      a result, the light duty assignment was continued for Plaintiff.
      Again, on August 17, 2000, Johnson was presented with a
      physician’s note from Plaintiff that read “[Plaintiff] remains
      temporarily partially disabled. On light duty for next two
      months until October 23, 2000.” Once again, Johnson kept
      Plaintiff in her light duty assignment. On October 17, 2000,
      Plaintiff presented Johnson with the final physician’s note that
      read “[Plaintiff] was seen in my office today with arthritis,
      possible reflex sympathetic dystrophy. She should remain on
      light duty for at least 2 more months.” In response to that
      note, Johnson again continued the light duty status for
      Plaintiff. Then, on November 22, 2000, Johnson notified
      Plaintiff that she was nearing the six-month limitation for
      light duty status. In connection with that conversation,
      Johnson asked Plaintiff to resign. When Plaintiff refused the
      request, Johnson filled out a discharge slip with the reason for
      termination as “Job: Can’t stand on feet.” Plaintiff was
      offered severance in the form of one week’s pay but was
      discharged effective immediately.

As indicated, this case was decided on defendant’s motion for summary judgment.


                                    -3-
There was considerable evidentiary matter before the court when it granted QuikTrip’s

motion for summary judgment, including plaintiff’s deposition, and depositions, or parts

thereof, of four representatives of QuikTrip. Also before the district court was plaintiff’s

resume, plaintiff’s job description, notes of plaintiff’s doctor, the plaintiff’s termination

order that she “can’t stand on her feet,” QuikTrip’s proposed termination agreement, and

plaintiff’s refusal to sign the proposed severance agreement.

       At the outset of our discussion, we note that the present action is not a workman’s

compensation case, nor is it one for breach of an employment contract. Rather, as stated,

it is one wherein the plaintiff seeks “actual, compensatory, and punitive damages in an

amount in excess of $10,000” from QuikTrip for discriminating against her in the work

place because of her physical disability. In this connection, 42 U.S.C. § 12112 provides as

follows:

       No covered entity shall discriminate against a qualified individual with a
       disability because of the disability of such individual in regard to job
       application procedures, the hiring, advancement, or discharge of employees,
       employee compensation, job training, and other terms, conditions, and
       privileges of employment.

       Further, 42 U.S.C. § 12102 (2) provides as follows:

       (2) Disability.
       The term “disability” means, with respect to an individual ----
              (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.

       In Toyota Motor Mfg. Ky., Inc. v. Williams, 534 U.S. 184, 194-195 (2002), the

                                             -4-
Supreme Court, citing 45 C.F.R. § 84.3(j)(2)(I), defined the term “physical or mental

impairment . . . that substantially limits a major life activity” as follows:

       any physiological disorder or condition, cosmetic disfigurement, or
       anatomical loss affecting one or more of the following body systems:
       neurological; musculoskeletal; special sense organs; respiratory, including
       speech organs; cardiovascular; reproductive, digestive, genito-urinary;
       hemic and lymphatic; skin; and endocrine.1

       Under 45 C.F.R. § 84.3(j)(2)(ii), the phrase “major life activities” are defined as

“functions such as caring for one’s self, performing manual tasks, walking, seeing,

hearing, speaking, breathing, learning, and working.” Thus, in an action of the present

sort, a plaintiff must show that a major life activity is substantially limited, in this case, by

plaintiff’s arthritic condition, and that accordingly she is “disabled” within the terms of

the ADA.

       In granting QuikTrip’s motion for summary judgment on plaintiff’s ADA claim,

the district court concluded that the plaintiff had failed “to produce enough evidence to

show that her impairment substantially limits her major life activities of walking or

standing.” Specifically, the district court observed that the deposition of the plaintiff

“fails to present the necessary comparative evidence to preclude the court from granting

summary judgment on this matter. Conversely, the deposition testimony of plaintiff

shows that she was able to perform activities involving standing and walking.” Also, in

her deposition, the plaintiff, who was living alone, without outside help, testified that she


       In Toyota Motor, the Supreme Court observed that “merely having an impairment does
       1

not make one disabled for purposes of the ADA.” Id. at 195.

                                              -5-
was able to feed herself, bathe herself, drive her automobile, take care of all her daily

needs, and did not use a cane, nor had she ever had a cane. It was in this general setting

that the district court concluded that, on the record before it, plaintiff had not shown that

she was “disabled” under the ADA. We are in accord with the district court’s analysis of

this issue.

       The district court then went on to discuss whether, under 42 U.S.C. § 12102(2)(C),

QuikTrip, when it terminated plaintiff, mistakenly believed that she suffered from a

substantially limiting impairment, even though in fact she did not so suffer. In this

regard, the district court rejected the plaintiff’s suggestion that QuikTrip employee J. D.

Johnson mistakenly believed her to be disabled under the ADA when he wrote on her

termination slip, “Job: Can’t stand on feet.” The district court observed that the comment

that she couldn’t stand on her feet did not show that she was “substantially limited in any

major life activity or that defendant maintained a mistake, stereotype, or bias towards her

impairment,” citing Rakity v. Dillon Co., Inc., 302 F.3d 1152 (10th Cir. 2002) and Lusk v.

Ryder Integrated Logistics, 238 F.3d 1237 (10th Cir. 2001).2 We agree with the district

court’s disposition of this aspect of the present case.




       2
        In Lusk, at 1241, we stated that an employer’s belief that an employee “could no
longer perform a job . . . does not mean that the employer regards the employee as being
disabled . . . .” under the ADA, and in Rakity, at 1262, we stated that an employer “is free
to decide that some limiting, but not substantially limiting, impairments make individuals
less than ideally suited for a job.”


                                             -6-
Judgment affirmed.



                           Entered for the Court,



                           Robert H. McWillliams
                           Senior Circuit Judge




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