                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                   ________________

                                      No. 09-1382
                                   ________________

Tim Lors, acting in his official       *
capacity,                              *
                                       *
              Appellant,               *
                                       *     Appeal from the United States
       v.                              *     District Court for the
                                       *     District of South Dakota.
Jim Dean, acting in his official and *
individual capacities; Deb Dufour,     *         [PUBLISHED]
acting in her official and individual *
capacities; Otto Doll, acting in his   *
official and individual capacities;    *
Kim Stahl, acting in her official and *
individual capacities; State of South *
Dakota; Marty J. Jackley,1 Attorney *
General,                               *
                                       *
              Appellees.               *
                                  ________________

                            Submitted: February 8, 2010
                                Filed: February 19, 2010
                               ________________

Before WOLLMAN, HANSEN, and MELLOY, Circuit Judges.
                      ________________



      1
      Lors initially filed suit against Larry Long, then South Dakota Attorney
General, but we substitute Marty J. Jackley, the current South Dakota Attorney
General. See Fed. R. App. P. 43(c)(2).
PER CURIAM.

       Tim Lors filed suit against his supervisors at the State of South Dakota's Bureau
of Information and Telecommunications (BIT), the State of South Dakota, and various
state officials after being removed from the position of team leader at BIT, alleging
that he was discriminated against because of his diabetes, in violation of the
Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. The district
court2 granted summary judgment to the appellees. Lors appeals, and for the
following reasons, we affirm.

       Lors is a 56-year-old man who has lived with type 1 diabetes for over 30 years.
Type 1 diabetes is a disease in which an individual fails to produce insulin. As a
result, an individual with type 1 diabetes must inject himself with insulin in order to
maintain a proper blood sugar level. Because of the risks of complications from either
too much or too little insulin, it is important that the individual's insulin intake be
matched with his or her insulin needs, which can be affected by, among other things,
activity level, food, and stress.

       The BIT, where Lors was employed, provides computer technical support
services to South Dakota state agencies. Within the BIT, employees are organized in
teams of six or more employees, each led by a team leader. The team leader oversees
his or her team and ensures that each team member is responding to the appropriate
number of support requests. Prior to November 2004, Lors served as a team leader.
His direct supervisor was Jim Dean, Dean's supervisor was Deb Dufour, and Otto Doll
was the acting Commissioner of BIT with supervisory authority over all BIT
employees. Kim Stahl was the Human Resources officer in the separate Bureau of
Personnel.


      2
        The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.

                                          -2-
       On October 29, 2004, Dean wrote Lors a letter explaining that as of November
9, 2004, Lors would be removed from the position of team leader and would be placed
in the position of a computer support analyst. The letter called the move a "lateral
transfer" and explained that his pay grade and salary would not be changed. (App. at
24.) The letter explained that Lors was to be removed because he "continue[d] to have
difficulty getting along with others . . . [and Dean] continue[d] to get complaints about
[Lors's] ability to be a team player." (Id.) At the time Lors was removed from the
position of team leader, Dean and Dufour were aware that Lors had type 1 diabetes.

       After being removed, Lors was first assigned to provide computer support
services in the South Dakota Women's Prison (SDWP). In January 2005, Lors
expressed concern that the unpredictable nature of his job-required physical activity
at the SDWP made controlling his diabetes difficult and that he might be inside the
secure perimeter of the SDWP without his diabetes supplies during a lockdown. As
a result of Lors's concerns, Dean reassigned Lors to another building in February
2005. In a letter dated February 18, 2005, Dean wrote that "unless there is an
emergency," Lors was permitted to "decide what to do when" in completing his work
in a way that would allow him to manage his diabetes. (App. at 27.) The letter also
stated that, in the event of a work emergency, Lors could ask to have the work
assigned to another analyst to ensure his blood sugar levels were in an acceptable
range before continuing work. Lors continued to express displeasure with his job and
demand that he be returned to the position of team leader, since he believed the
position of computer support analyst did not provide him the consistency and low
level of stress that he believed he needed to properly control his diabetes. In a letter
dated August 2, 2005, Dean wrote that Lors was "argumentative, uncooperative, and
insubordinate," and that Lors had "become defensive and even more difficult to get
along with" following the transfer out of the position of team leader and reiterated that
Lors was able to control his work schedule and decide what to do when. (Id. at 28.)




                                          -3-
       In April 2007, Lors filed suit against the appellees, claiming that he was
discriminated against because of his diabetes, in violation of the ADA. The appellees
filed a motion for summary judgment, which the district court granted, finding that
Lors failed to establish that he was discriminated against because of his disability.
The district court held that Lors had failed to establish that he was disabled under the
ADA, and that, even assuming he was disabled under the ADA and was able to
establish a prima facie case of discrimination, he did not meet his burden of
demonstrating that the appellees' proffered reason for the demotion (refusal to follow
orders and inability to work with others) was pretextual.

       Lors appeals, arguing that the district court incorrectly analyzed whether he was
substantially limited in a major life activity under the ADA, that the district court
erred in granting summary judgment on the issue of pretext because pretext is a
factual issue that should be resolved by a trial, and that the accommodation the
appellees offered Lors was ineffective because it did not provide consistency or
predictability.

      "We review the district court's grant of summary judgment de novo and may
affirm the district court on any basis supported by the record." Figg v. Russell, 433
F.3d 593, 597 (8th Cir. 2006) (internal citation omitted). Summary judgment is
appropriate "if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2).

       Under the ADA, an employer may not discriminate against an employee
because of the employee's disability. Rehrs v. Iams Co., 486 F.3d 353, 356 (8th Cir.
2007). "In the absence of evidence of direct discrimination, we analyze ADA claims
under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792, 804 (1973)." Id. "Under this framework, a plaintiff bears the burden of
establishing a prima facie case showing he (1) had a disability within the meaning of

                                          -4-
the ADA; (2) was qualified, with or without a reasonable accommodation, to perform
the essential job functions of the position in question; and (3) suffered an adverse
employment action because of his disability." Id. "The burden then shifts to the
employer to articulate some legitimate, nondiscriminatory reason for the employer's
actions." Id. "If the employer articulates such a reason, the burden returns to the
employee to show the employer's justification is a pretext." Id. "'To demonstrate
pretext, a plaintiff must present sufficient evidence to demonstrate both that the
employer's articulated reason for the adverse employment action was false and that
discrimination was the real reason. . . . [T]he plaintiff must do more than simply create
a factual dispute as to the issue of pretext; he must offer sufficient evidence for a
reasonable trier of fact to infer discrimination.'" McNary v. Schreiber Foods, Inc., 535
F.3d 765, 769 (8th Cir. 2008) (quoting Wilking v. County of Ramsey, 153 F.3d 869,
874 (8th Cir. 1998)).

       Even assuming that Lors was able to establish the first two prongs of his prima
facie case and his removal from the position of team leader was an adverse
employment action, he has not demonstrated that he suffered an adverse employment
action because of his disability. Deb Dufour testified in her deposition that Lors
ignored and disobeyed explicit orders. See App. at 59 ("There was [sic] emails that
were sent that shouldn't have been. We asked you not to send them, you did
anyway."). She also testified that Lors "couldn't get along with certain other groups
in BIT," had issues with "maintain[ing] a professional working relationship with all
entities in BIT," had difficulty "follow[ing] the chain of command," and was
uncooperative with his coworkers. Id. at 60; see also id. at 59 ("You weren't willing
to work with people to get things done, you just kind of gave—you handed the
problem over to them and weren't willing to work with them to get it done."). There
was no evidence demonstrating a genuine issue of material fact over whether Lors was
removed from the position of team leader because of his diabetes.




                                          -5-
       Moreover, even if Lors was able to meet the burden of establishing his prima
facie case, the appellees have offered a legitimate, non-discriminatory reason for their
actions, and Lors has failed to offer evidence showing a genuine issue of material fact
regarding whether this is a pretext. Lors argues that pretext is a factual issue that
should be determined by a jury and is not appropriate for summary judgment.
However, we have previously analyzed a district court's grant of summary judgment
based on a lack of pretext. See, e.g., McNary, 535 F.3d at 770 ("We hold that McNary
has failed to show that there is a genuine issue of material fact as to whether
Schrieber's proffered justification was pretext for an illegal discriminatory motive
based on his disability. Therefore, the district court's grant of summary judgment for
Schreiber was proper.").

        Lors further argues that the accommodation the appellees offered Lors was
ineffective because it did not provide consistency or predictability. Lors's experts
testified that, even without accommodations, a hypothetical employee of Lors's age
and general health could adequately manage his diabetes without accommodations.
Thus, Lors offered no evidence that accommodations were necessary. In spite of this,
appellees did offer Lors accommodations, allowing him to take breaks to test his
blood sugar and treat a low blood sugar, and offering him flexibility in deciding what
to do when to best accommodate his diabetes. Even if, as Lors contends, he could
better control his diabetes as a team leader, we have previously explained that "the
ADA is not an affirmative action statute." Huber v. Wal-Mart Stores, Inc., 486 F.3d
480, 483 (8th Cir.), cert. dismissed, 552 U.S. 1074 (2007). Further, "an employer is
not required to provide a disabled employee with an accommodation that is ideal from
the employee's perspective, only an accommodation that is reasonable." Id. at 484.
Thus, appellees were not required to employ Lors as a team leader simply because it
allowed him to maintain better control of his diabetes. See id. ("[T]he ADA does not
require Wal-Mart to turn away a superior applicant for the [desired] position in order
to give the position to the [disabled employee].").



                                          -6-
       Finally, Lors points to various reasons the decision to remove him from the
position of team leader was illogical. For example, he argues that while the appellees
claim he was removed from the position because he did not get along well with others,
the position he was placed in increased his contact with others. However, "we 'do not
sit as a super-personnel department to review the wisdom or fairness of'" an
employer's employment decisions. See Wittenburg v. Am. Express Fin. Advisors,
Inc., 464 F.3d 831, 836 (8th Cir. 2006), cert. denied, 551 U.S. 1113 (2007) (quoting
Wallace v. Sparks Health Sys., 415 F.3d 853, 858 (8th Cir. 2005)). Even if the
appellees' decision to remove Lors from the position of Team Leader was not the best
strategic employment decision, poor decision-making provides no basis for relief
under the ADA. Lors failed to demonstrate that there is a genuine issue of material
fact as to whether the employment decision was because of his disability or whether
the appellees' proffered justification was pretext.3

      Accordingly, the district court's judgment in favor of appellees is affirmed.
                      ______________________________




      3
        In his reply brief, Lors argues that the appellees' motions for summary
judgment did not address his 42 U.S.C. § 1983 claim and the district court erred in
dismissing the claim. However, Lors failed to raise this in his opening brief. "Claims
not raised in an opening brief are deemed waived." Jenkins v. Winter, 540 F.3d 742,
751 (8th Cir. 2008). "This court does not consider issues raised for the first time on
appeal in a reply brief 'unless the appellant gives some reason for failing to raise and
brief the issue in his opening brief.'" Id. (quoting Neb. Plastics, Inc. v. Holland Colors
Ams., Inc., 408 F.3d 410, 421 n.5 (8th Cir. 2005)). Lors "does not provide a reason
for failing to raise and brief" the § 1983 claim in his opening brief, and accordingly,
it is waived. See id.

                                           -7-
