                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           July 7, 2005

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 BERNARD L. HUMBLES,

          Plaintiff-Appellant,
                                                       No. 04-1218
 v.
                                                   (D.C. No. 02-B-1354)
                                                         (D. Colo.)
 ANTHONY J. PRINCIPI, Secretary,
 U.S. Department of Veterans Affairs,

          Defendant-Appellee.




                          ORDER AND JUDGMENT *


Before SEYMOUR, PORFILIO and HARTZ, Circuit Judges.



      Plaintiff Bernard L. Humbles sued his employer, Anthony J. Principi,

Secretary of the United States Department of Veterans Affairs, for discrimination

in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e to 2000e-17,

and the Rehabilitation Act, 29 U.S.C. §§ 791 & 794(a). He appeals the district

court’s grant of summary judgment to defendant. We affirm.

      *
       This order and judgment is not binding precedent, except under the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.
      Mr. Humbles, who works for the Denver Veteran’s Affairs Medical Center

(VA Center), alleges discrimination based on his African American and Native

American heritage, and on the basis of a disability resulting from posttraumatic

stress disorder (PTSD). The district court concluded that Mr. Humbles failed to

establish the presence of any genuine issue of material fact under the McDonnell

Douglas framework for claims of disparate treatment, McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973).

      We review a grant of summary judgment de novo and apply the same legal

standard as the district court. Simms v. Okla. ex rel. Dep’t of Mental Health &

Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999). 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.” F ED . R. C IV . P. 56(c). In applying this standard,

“we view the evidence and draw reasonable inferences therefrom in the light most

favorable to the nonmoving party.” Simms, 165 F.3d at 1326. Once the movant

establishes its initial burden of showing the absence of a material fact issue, the

nonmovant “must bring forward specific facts showing a genuine issue for trial as

to those dispositive matters for which [it] carries the burden of proof.” Id.

(quoting Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir. 1996)). An issue of


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material fact is genuine only if the nonmovant presents facts such that a

reasonable jury could find in its favor. Id. If no genuine issue of material fact is

in dispute, we assess whether the district court correctly applied the substantive

law. Id.

      Mr. Humbles claims that he applied for a higher position at the VA Center

in December 2000 and was not referred or promoted due to discrimination based

on race and national origin. He also contends that his workload was

discriminatorily increased in May 2001 without a corresponding pay increase.

These claims, based on circumstantial evidence, are subject to the burden-shifting

framework set forth in McDonnell Douglas. Under this framework, a plaintiff

must first establish a prima facie case of discrimination. Kendrick v. Penske

Transp. Servs., 220 F.3d 1220, 1226 (10th Cir. 2000), by showing: 1) he belongs

to a protected class; 2) he was qualified for the position; 3) he suffered an adverse

employment action; and 4) he was treated less favorably than others. Exum v.

U.S. Olympic Comm., 389 F.3d 1130, 1134 (10th Cir. 2004). The burden then

shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its

actions. Kendrick, 220 F.3d at 1226. If the defendant satisfies this showing, the

plaintiff then must demonstrate that the defendant’s justification is pretext for

unlawful discrimination. Id.

      The record supports the district court’s conclusion that Mr. Humbles failed


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to satisfy his burden of establishing his employer’s refusal to refer or promote

him was due to his race or national origin. Even if he made a prima facie

showing of intentional discrimination, the VA Center countered with the

legitimate, nondiscriminatory reason that Mr. Humbles was not eligible for the

position at issue. The position required a GS-11 grade level and that applicants

had spent one year at the GS-9 level or its equivalent, but Mr. Humbles was

classified at GS-7. Although he disputes his classification and claims he should

have been classified at GS-9 instead, he concedes he did not previously appeal his

classification. More importantly, as the district court noted, Mr. Humbles

admitted that another candidate was preselected for the position because the

candidate had a close relationship with a person who assisted the selecting

official. This is a nondiscriminatory motive, which does not create an inference

of discrimination. See Neal v. Roche, 349 F.3d 1246, 1249-53 (10th Cir. 2003).

A plaintiff’s concession of a nondiscriminatory motive undermines the existence

of pretext and extinguishes a Title VII claim. See id. at 1251-53; see also Taken

v. Oklahoma Corp. Comm’n, 125 F.3d 1366, 1370 (10th Cir. 1997).

       Mr. Humbles’ Title VII discrimination claim based on an increased

workload also fails. Although “an increased workload might constitute an

adverse employment action in some circumstances,” Jones v. Barnhart, 349 F.3d

1260, 1269-70 (10th Cir. 2003), Mr. Humbles failed to show his workload


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increased in relation to other employees, or that others were granted pay increases

while he was not. See id.; Amro v. Boeing Co., 232 F.3d 790, 798 (10th Cir.

2000). Moreover, the VA Center established a legitimate, nondiscriminatory

reason for the increase. It is undisputed that another employee resigned, which

increased the workload of the rest of the staff. Mr. Humbles did not proffer

evidence of pretext to counter this showing.

      He next claims that the failure to refer or promote him and the increased

workload were due to disability discrimination. Mr. Humbles has PTSD, which

he says interferes with his sleep, memory, concentration, and ability to interact

with others. To establish a prima face case, he must show that 1) he is disabled

within the meaning of the law; 2) he is qualified, i.e., he can, with or without

reasonable accommodation, perform the essential functions of the job; and 3) he

was discriminated against due to his disability. Wells v. Shalala, 228 F.3d 1137,

1144 (10th Cir. 2000); Anderson v. Coors Brewing Co., 181 F.3d 1171, 1175

(10th Cir. 1999). To be disabled under the Act, he must show either that he has a

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

life activities; he has a record of such impairment; or he is regarded as having

such an impairment. Sutton v. United Air Lines, Inc., 527 U.S. 471, 478 (1999).

Mr. Humbles claims he satisfies the first and third definitions of disability.

      Regarding his first argument, the district court noted that plaintiffs are


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generally required to show their limitations are substantial compared to the

general public. See Lusk v. Ryder Integ. Log., 238 F.3d 1237, 1240-41 (10th Cir.

2001). Mr. Humbles failed to present any evidence that his sleep disturbances,

which he claimed resulted in his getting four to five hours of sleep per night,

presented a substantial limitation compared to the general public. Mr. Humbles’

claims about his interactions with others, memory, and concentration suffered

from the same shortcomings. Moreover, interactions with others and

concentration have not been deemed major life activities by this circuit. See

Steele v. Thiokol Corp., 241 F.3d 1248, 1254-55 (10th Cir. 2001); Poindexter v.

Atchison, Topeka & Santa Fe Ry. Co., 168 F.3d 1229, 1231 (10th Cir. 1999). Mr.

Humbles thus failed to show his impairment substantially limits a major life

activity.

       Mr. Humbles also contends the VA Center regarded him as having a

disability because it perceived he was substantially limited in his ability to work

and sleep. A plaintiff satisfies this definition only if the employer “entertain[s]

misperceptions” related to the individual and his disability, such as those based on

“myths, fears and stereotypes.” See Doebele v. Sprint/United Mgmt. Co., 342

F.3d 1117, 1132-33 (10th Cir. 2003). We agree with the district court that Mr.

Humbles presented no evidence that the VA Center held such misperceptions.

Even if he had satisfied his initial burden, as discussed above, he did not make a


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satisfactory showing of pretext.

      Mr. Humbles also claims the VA Center failed to accommodate his

disability. As part of his current position, he conducts intakes with veterans who

themselves are suffering from PTSD. He alleges he requested that the number of

intakes he was required to perform be reduced or eliminated as an

accommodation, but they were not. To succeed in his claim of failure to

accommodate, he must establish not only that he is disabled but also that he is

“qualified” for the position in that he can perform the essential functions of his

job and, if not, he must identify the reasonable accommodations that would enable

him to do so. See Wells, 228 F.3d at 1144. As discussed above, Mr. Humbles did

not establish he was disabled within the meaning of the Rehabilitation Act. The

district court further concluded that even if he were disabled, he failed to create a

genuine issue of material fact regarding a reasonable accommodation. Mr.

Humbles concedes that the intakes are essential functions of his job, but suggests

that a reasonable accommodation might involve reallocating the workload among

other employees. An employer is not required to accommodate a disabled worker

by modifying or eliminating an essential function of a job. Mathews v. Denver

Post, 263 F.3d 1164, 1168-69 (10th Cir. 2001). In addition, an employer is not

required to accommodate a disabled worker by reallocating work duties such that

other employees are forced to work harder. See Mason v. Avaya Communications,


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Inc., 357 F.3d 1114, 1121 n.3 (10th Cir. 2004) (citing Milton v. Scrivner, Inc., 53

F.3d 1118, 1125 (10th Cir. 1995)). Upon review of the record and the relevant

case law, we agree that Mr. Humbles did not establish a genuine issue of material

fact regarding his prima facie case.

      Finally, Mr. Humbles contends the VA Center retaliated against him for his

EEO activity. He claims the VA Center, among other retaliatory actions, failed to

refer or promote him for the GS-11 position, increased his workload without

additional salary, denied him monetary awards, and assigned him to a small office

without a button that could be activated in case of emergencies. To succeed on

his retaliation claim, he must make a prima facie showing that 1) he was engaged

in protected opposition to discrimination; 2) he was subjected to an adverse

employment action; and 3) a causal connection exists between the protected

activity and the adverse action. Kendrick, 220 F.3d at 1234. The causal

connection may be demonstrated by setting forth “evidence of circumstances that

justify an inference of retaliatory motive, such as protected conduct closely

followed by adverse action . . . . In other words, [the plaintiff] must present some

evidence that [the] employer undertook the adverse employment action for the

purpose of retaliation.” Bullington v. United Air Lines, Inc., 186 F.3d 1301,

1320-21 (10th Cir. 1999) (internal quotation omitted), abrogated on other

grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002).


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      The district court concluded that Mr. Humbles merely made conclusory

allegations in his pleadings about the first and third elements of his claim, which

constituted insufficient evidence for summary judgment purposes under Lantec,

Inc., v. Novell, Inc., 306 F.3d 1003, 1019 (10th Cir. 2002). Even if he had

satisfied the first element of his claim, he has not raised any issues of material

fact establishing a causal connection between any protected activity and the

alleged adverse actions. In addition, he has proffered no evidence to demonstrate

that the VA Center’s actions were pretextual.

      Having carefully reviewed Mr. Humbles’ contentions and the record in this

case, we AFFIRM the judgment of the district court for substantially the reasons

set forth in its order dated May 7, 2004.

                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Circuit Judge




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