                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          NOV 15 2004

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 SAM O. PRATHAN,

          Plaintiff-Appellant,
                                                       No. 03-4255
 v.                                            (D.C. No. 1:01-CV-104-DAK)
                                                          (UTAH)
 AUTOLIV ASP, INC.,

          Defendant-Appellee.




                          ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY, and McCONNELL, Circuit Judges.


      Plaintiff Sam O. Prathan brought an action against his former employer,

Autoliv ASP, Inc., claiming he was terminated effective October 19, 2000 in

violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et

seq., the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et

      *
       After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
seq., and an implied contract. The district court granted summary judgment

against Mr. Prathan on all claims. He appeals with respect to the ADA and

implied contract claims. We affirm.

      We review de novo the grant of a summary judgment to determine whether

any genuine issues of material fact were in dispute and, if not, whether the district

court correctly applied the substantive law. Viernow v. Euripides Dev. Corp., 157

F.3d 785, 792 (10th Cir. 1998). “When a motion for summary judgment is made

and supported . . ., an adverse party may not rest upon the mere allegations or

denials of the adverse party’s pleading, but . . . must set forth specific facts

showing that there is a genuine issue for trial.” F ED . R. C IV . P. 56(e); Geoffrey E.

Macpherson, Ltd. v. Brinecell, Inc., 98 F.3d 1241, 1245 (10th Cir. 1996).

      We have thoroughly reviewed the briefs on appeal, the entire record, and

the relevant caselaw. Mr. Prathan has provided us no basis on which to reverse

the district court’s careful consideration of his case. In particular, we note there

is no medical evidence in the record that Mr. Prathan’s disability was anything

other than temporary. In fact, Mr. Prathan testified in his deposition that he was

no longer disabled as of November 2000. Aplt. App. at 448-49. It is clear that a

temporary disability does not meet the standards of the ADA; rather, “[t]he

impairment’s impact must . . . be permanent or long term.” See Toyota Motor

Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002) (citing 29 CFR §§


                                           -2-
1630.2(j)(2)(ii)-(iii)).

       Nor is there any evidence that Autoliv regarded Mr. Prathan as disabled.

Rather, the evidence is to the contrary, given that the company terminated Mr.

Prathan because they believed he was claiming to be disabled when, in fact, the

videotaped evidence showed he was not.

       We also agree with the district court that Mr. Prathan failed to establish a

claim for breach of implied contract or implied covenant of good faith and fair

dealing and/or that these claims are preempted by ERISA and the Utah

Antidiscrimination Act. See U TAH C ODE § 34A-5-107(15).

       In sum, we AFFIRM the judgment of the district court substantially for the

reasons given by the court in its Memorandum Decision and Order filed

September 26, 2003.

                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Circuit Judge




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