                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  April 28, 2009
                     UNITED STATES COURT OF APPEALS
                                                              Elisabeth A. Shumaker
                           FOR THE TENTH CIRCUIT                  Clerk of Court



    CAMRAN DURHAM,

               Plaintiff-Appellant,

    v.                                                  No. 08-5135
                                            (D.C. No. 4:07-CV-00273-JHP-PJC)
    MCDONALD’S RESTAURANTS OF                           (N.D. Okla.)
    OKLAHOMA, INC., an Oklahoma
    corporation,

               Defendant-Appellee.


                            ORDER AND JUDGMENT *


Before BRISCOE, BALDOCK, and HOLMES, Circuit Judges.



         Camran Durham filed suit against his former employer, McDonald’s

Restaurants of Oklahoma, Inc., for discrimination, hostile work environment, and

constructive discharge under Subchapter I of the Americans with Disabilities Act

(ADA), 42 U.S.C. § 12101-12117. The district court granted summary judgment



*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
to McDonald’s. The court held that Mr. Durham’s conditions did not qualify as

disabilities under the ADA because they were controlled with medication and thus

did not substantially limit a major life activity. The court also held that he could

not show that McDonald’s perceived or treated him as disabled within the

meaning of the ADA and he failed to demonstrate sufficiently severe conditions

to constitute a hostile work environment (or, implicitly, a constructive discharge).

      In his opening brief, Mr. Durham raises only one issue, contending that the

ADA Amendments Act of 2008 (ADAAA), Pub. L. No. 110-325, 122 Stat. 3553,

should apply to this case. 1 He argues that the district court erred in finding him

not disabled, because the ADAAA specifies that the existence of a disability does

not depend on corrective measures such as medication.

      But we need not decide this issue. Even if we were to hold that the

ADAAA applies and the district court erred in finding Mr. Durham not disabled,

the district court’s other rulings are dispositive of his claims. 2 See Zwygart v. Bd.

of County Comm’rs, 483 F.3d 1086, 1090 (10th Cir. 2007) (noting that the three



1
      Mr. Durham’s opening brief also sets forth various facts, which, in his
reply brief, he contends create genuine issues of fact that preclude summary
judgment. But listing facts in the opening brief, without articulating an argument
concerning them until the reply brief, does not preserve an argument for appeal.
2
       While we do not reach the issue, we note that other courts consistently have
held that the ADAAA does not apply to conduct occurring before its enactment.
See, e.g., EEOC v. Agro Distrib., LLC, 555 F.3d 462, 469 n.8 (5th Cir. 2009);
Moran v. Premier Educ. Group, LP, __ F. Supp. 2d __, 2009 WL 507505, at *7
(D. Conn. 2009) (collecting cases).

                                          -2-
elements of an ADA prima facie case include a showing that discrimination was

“because of” a disability); MacKenzie v. City and County of Denver, 414 F.3d

1266, 1280 (10th Cir. 2005) (“For a hostile environment claim to survive a

summary judgment motion, a plaintiff must show that a rational jury could find

that the workplace [was] permeated with discriminatory intimidation, ridicule,

and insult, that is sufficiently severe or pervasive to alter the conditions of the

victim's employment and create an abusive working environment.” (alteration in

original, quotation omitted)); id. at 1281 (“Constructive discharge occurs when an

employer deliberately makes or allows the employee’s working conditions to

become so intolerable that the employee has no other choice but to quit.”).

Mr. Durham’s failure to raise any other issues in his opening brief results in a

waiver of any challenges to the remaining rulings. See Becker v. Kroll, 494 F.3d

904, 913 n. 6 (10th Cir. 2007) (“An issue or argument insufficiently raised in the

opening brief is deemed waived.”).

      Because the district court’s remaining rulings are dispositive of

Mr. Durham’s claims and he has waived any challenges to those rulings, the

judgment of the district court is AFFIRMED.

                                                      Entered for the Court



                                                      Bobby R. Baldock
                                                      Circuit Judge


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