                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                               December 21, 2011
                           FOR THE TENTH CIRCUIT
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court


    ALETHIA ROSELLE ALLEN,

               Plaintiff!Appellant,

    v.                                                  No. 11-5016
                                           (D.C. No. 4:10-CV-00180-GKF-TLW)
    SOUTHCREST HOSPITAL, a                              (N.D. Okla.)
    domestic corporation; SOUTHCREST
    FAMILY & MATERNITY CARE, a
    foreign corporation; SOUTHCREST
    LLC, a domestic corporation,

               Defendants!Appellees.


                           ORDER AND JUDGMENT *


Before KELLY, Circuit Judge, PORFILIO, Senior Circuit Judge, and
MATHESON, Circuit Judge.


         The Americans With Disabilities Act, 42 U.S.C. §§ 12101 - 12213 (ADA),

prohibits covered employers from discriminating against their employees on the

basis of disability. See id. § 12112(a). The ADA defines a “disability” as “a


*
       After examining the briefs and 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); 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
physical or mental impairment that substantially limits one or more major life

activities of [an] individual.” Id. § 12102(1)(A). In this appeal, we must

determine whether the plaintiff, Alethia Roselle Allen, was under such a disability

when her employer, SouthCrest Hospital (SouthCrest), allegedly failed to

accommodate her disability and terminated her employment. Because we

conclude that Ms. Allen failed to demonstrate a genuine issue of material fact

concerning her alleged disability, we affirm the district court’s entry of summary

judgment in favor of SouthCrest. As we affirm summary judgment on this basis,

we need not reach the other issues presented by the parties.

                                 BACKGROUND

      Prior to 2006, Ms. Allen worked as a medical assistant for a group of

physicians known as the Family Medical Group (Family Medical). In 2006,

SouthCrest acquired Family Medical. Ms. Allen thereafter accepted a position

with SouthCrest working as a medical assistant with the same group of doctors

she had previously worked for at Family Medical.

      Ms. Allen’s duties as a medical assistant included checking in patients,

taking their vital signs, assisting doctors with medical procedures, calling in

medication prescriptions, receiving and returning telephone calls from patients

and discussing lab results with them, and removing staples and sutures. She also

followed up with patient concerns and made outgoing telephone calls.




                                         -2-
      During her time at SouthCrest, Ms. Allen worked at first for Dr. Matthew

Stevens in the Family and Maternity Care Clinic. In March 2009, she requested a

transfer to work for Dr. Adam Myers, another physician in the Family and

Maternity Care Clinic. SouthCrest agreed to the transfer, and shortly thereafter

Ms. Allen began working as Dr. Myers’ medical assistant.

      Dr. Myers’ office proved more stressful for Ms. Allen than Dr. Stevens’

had been. Dr. Myers saw all of his patients on three half-days per week. There

was a great deal of time pressure in his office, particularly during these three

half-days. To help Ms. Allen manage her workload, her SouthCrest supervisor

provided special training. Also, two other SouthCrest employees assisted her

with checking patients in and with taking phone calls.

      While working for Dr. Myers, Ms. Allen began to experience migraine

headaches. The headaches occurred several times per week, but she did not suffer

from them on a daily basis. Prior to her employment at SouthCrest, she had

suffered only one migraine in her lifetime, when she was eighteen years old.

      Ms. Allen’s migraines varied in severity. As she described them,

“[s]ometimes it was like I could get up and my head was still banging. But I

wasn’t dizzy or I wasn’t nauseated. So I could keep moving. Then other times,

those are the times that I didn’t go to work.” Aplt. App., Vol. I at 74. She saw a

doctor at SouthCrest for the migraines, who prescribed her various medications to

treat them.

                                          -3-
      In July 2009, Ms. Allen submitted a request for leave under the Family and

Medical Leave Act (FMLA). She sought FMLA leave to care for her daughter,

who was scheduled to give birth on July 31, 2009. SouthCrest denied the request

for FMLA leave on July 31, 2009. 1

      On the next business day, August 3, 2009, Ms. Allen tendered her

resignation to her SouthCrest supervisor, Carla Gunn. She later testified that she

resigned because of her migraines and hypertension. Id., Vol. II at 184.

      On August 14, 2009, three days before the scheduled effective date of her

resignation, Ms. Allen spoke with Sarah Samuelson, a human resources specialist

at SouthCrest. Noting that several of her co-workers would be out on vacation on

August 17, Ms. Allen offered to work past her resignation date to cover for these

employees. SouthCrest authorized her to cover for the employees, but refused to

give her back her resignation letter. Ms. Allen also refused to provide SouthCrest

with a new resignation date.

      On the morning of August 26, 2009, Ms. Allen became ill at work with a

migraine and chest pains. She went to the emergency room and was treated for

these conditions.

      That evening, Ms. Allen’s supervisors at SouthCrest, together with all the

doctors in the Family and Maternity Care clinic, including Dr. Myers and

1
       Ms. Allen’s complaint originally included a claim for interference with, or
retaliation because of, her request for FMLA leave. She later abandoned that
claim. See Aplt. App., Vol. II at 171 n.3.

                                        -4-
Dr. Stevens, met for a regularly scheduled financial meeting. During the meeting,

Ms. Allen’s employment was discussed. It was noted that Ms. Allen wished to

rescind her resignation. The doctors present decided not to allow the rescission,

allegedly because of performance issues. Ms. Gunn called Ms. Allen the morning

of August 27, 2009, to inform her of SouthCrest’s decision to accept her

resignation, effective that day.

      A few months after leaving SouthCrest, Ms. Allen stopped having

migraines. At the time of her deposition in September 2010, she had not had a

migraine for approximately nine months. She does not assert that the migraines

resumed after the time of her deposition.

      Ms. Allen subsequently filed this action, which included ADA claims for

failure to accommodate and wrongful termination. SouthCrest moved for

summary judgment on all of her claims, arguing, among other things, that Ms.

Allen was not disabled. South Crest noted that Ms. Allen made “no claim that

[her] alleged conditions were long-lasting or that they are permanent in nature”

and asserted that she admitted that “she was capable of driving and going about

her normal life while experiencing them.” Id., Vol. I at 31. At the close of the

hearing on SouthCrest’s motion, the district court ruled as follows:

      The Court will grant the motion for summary judgment . . . as to [the
      ADA claims], primarily because [Ms. Allen] has not established the
      first element of a prima face case of ADA discrimination, that she is
      disabled within the meaning of the ADA.


                                         -5-
               Further as to [her] claim for termination in violation of the
      ADA, [Ms. Allen] has failed to establish the third element of a prima
      face case that her employer discriminated against her because of her
      disability because the employer’s refusal to allow her to rescind her
      resignation is not under the law an . . . “adverse employment action,”
      . . . in violation of the ADA.

Id., Vol. II at 262. Ms. Allen has now appealed from the district court’s award of

summary judgment to SouthCrest.

                                    ANALYSIS

      1. Standard of Review

      We review the district court’s grant of summary judgment de novo.

Mathews v. Denver Newspaper Agency LLP, 649 F.3d 1199, 1204 (10th Cir.

2011). “Summary judgment is appropriate if the admissible evidence shows ‘that

there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.’ Fed. R. Civ. P. 56(a).” Id. “In determining whether

summary judgment is appropriate, the court must view the evidence and draw all

reasonable inferences therefrom in the light most favorable to the party opposing

summary judgment.” Id. (quotation omitted).

      Ms. Allen’s complaint included both a “failure to accommodate” claim and

a “wrongful termination” claim. To survive summary judgment on these claims,

Ms. Allen bore “the burden of production with respect to a prima facie case.”

Smith v. Midland Brake, Inc., 180 F.3d 1154, 1179 (10th Cir. 1999) (en banc)




                                        -6-
Each of these claims required, as part of its prima facie case, that Ms. Allen show

that she was a disabled person within the meaning of the ADA. 2

      2. Was Ms. Allen “Disabled”?

      A person is “disabled” under the ADA if she suffers from “a physical or

mental impairment that substantially limits one or more major life activities.”

42 U.S.C. § 12102(1)(A). 3 To satisfy this definition, “a plaintiff must (1) have a

recognized impairment, (2) identify one or more appropriate major life activities,

and (3) show the impairment substantially limits one or more of those activities.”

Berry v. T-Mobile USA, Inc., 490 F.3d 1211, 1216 (10th Cir. 2007) (internal

quotation marks omitted). It is uncontested that Ms. Allen has the requisite




2
       To make out a prima facie case of disability discrimination under the ADA
relating to her termination, Ms. Allen had to show that, at the time her
employment was terminated, (1) she was a disabled person as defined by the
ADA; (2) she was qualified, with or without reasonable accommodation, to
perform the essential functions of her job; and (3) she was fired because of her
disability. Zwygart v. Bd. of Cnty. Comm’rs, 483 F.3d 1086, 1090 (10th Cir.
2007). “In order to establish a prima facie case of failure to accommodate in
accordance with the ADA, a plaintiff must show that: (1) she is a qualified
individual with a disability; (2) the employer was aware of her disability; and
(3) the employer failed to reasonably accommodate the disability.” Kotwica v.
Rose Packing Co, Inc., 637 F.3d 744, 747-48 (7th Cir. 2011) (quotation omitted).
Cf. also Smith, 180 F.3d at 1178-79 (describing prima facie case for ADA claim
of failure to accommodate by offering reassignment to a vacant position).
3
      A person may also establish disability by showing that she has a record of
such an impairment, or is regarded as having such an impairment. 29 C.F.R.
§ 1630.2(g)(1). These alternate forms of disability are not at issue here.

                                         -7-
impairment: her migraine headaches. 4 The issues on appeal involve the latter two

disability factors.

      We first consider whether Ms. Allen has identified major life activities that

are substantially limited by her migraine headaches. She contends that her

migraines substantially limit the major life activities of “working” and “caring for

herself.” Aplt. Opening Br. at 17. She also mentions, briefly, her ability to sleep.

See id. (“During her migraines her ability to sleep is affected[.]”).

      While Ms. Allen mentioned in passing her difficulties with sleeping in her

briefing and argument to the district court, see Aplt. App., Vol. II at 167, 170,

253, she made no specific argument that sleeping was a major life activity that

was substantially affected by her migraines, see id. at 172 (arguing her headaches

“substantially limit a major life activity” because when she had migraines

Ms. Allen “could not care for herself” and they “substantially limited her ability

to work for Dr[.] Myers”); 253-54 (arguing that “when Ms. Allen was

experiencing these episodes of migraine headaches she could not care for herself”

and they “did not allow her to perform in [her occupational] capacity with

Dr. Myers”). Her argument concerning the major life activity of sleep was

insufficiently developed in district court and is mentioned only in passing here.


4
      Ms. Allen identifies her impairments as “hypertension, migraines, insomnia
and heaviness in the chest.” Aplt. Opening Br. at 16. Her allegations concerning
substantial limitations are primarily tied to her migraines rather than the other
conditions, however.

                                         -8-
Accordingly, we will give no further consideration to “sleeping” as an alleged

major life activity. Cf. Justice v. Crown Cork & Seal Co., 527 F.3d 1080, 1086

n.2 (10th Cir. 2008) (rejecting attempt to assert argument concerning major life

activity of “balance” for first time on appeal).

      That leaves the other two alleged major life activities, working and caring

for herself. As to these major life activities, we move to the third factor: whether

her migraine headaches substantially limited Ms. Allen’s ability to perform them.

             A. Caring for Oneself

      Although Ms. Allen devotes most of her argument to the effect of her

condition on her ability to work, we begin our analysis with the major life activity

of “caring for oneself.” We start here because we consider “the major life

activity of working . . . only as a last resort.” EEOC v. Heartway Corp., 466 F.3d

1156, 1162 n.5 (10th Cir. 2006). “If an individual is substantially limited in any

other major life activity, no determination should be made as to whether the

individual is substantially limited in working.” Id. (internal quotation marks

omitted).

      SouthCrest argues that Ms. Allen specifically disclaimed any difficulties in

the major life activity of “caring for herself.” It further contends she later

attempted to create a sham issue of fact on this point by using an affidavit to

contradict her deposition testimony. SouthCrest draws our attention to the

following portion of Ms. Allen’s deposition:

                                          -9-
      Q. But most days, I guess, you could get up and go to work?

      A. In the last couple, few months, no. But yes, I could. I could go.
      But I was dealing with it. I didn’t have no choice. I had [to] go to
      work.

      Q. I understand. But you did get up and you went to work?

      A. Yes, sir. Yes, sir.

      Q. You could take care of yourself? You could take a shower and
      brush your teeth? You could hop in the car and drive to work.
      Right?

      A. Yes.

      Q. And then you could do your job as best you could there. You
      could stay there eight hours a day, I gather.

      A. Yes.

Aplt. App., Vol. II at 181-82 (emphasis added).

      By itself, this testimony plainly does not establish that Ms. Allen’s

migraines substantially limited her ability to care for herself. As she points out,

however, her testimony continued as follows:

      Q. And then you could get back in your car and drive home and
      cook a meal or whatever else you had to do at home?

      A. No. When you get home, that’s when you crash and burn. Take
      medication that’s going to make you go to sleep and you go to sleep.

      Q. Was that every day?

      A. Only when I had those migraines.

Id. at 182 (emphasis added).


                                         -10-
      In an affidavit submitted with her summary judgment response, Ms. Allen

clarified her reference to her need to “crash and burn” as follows:

      On the days I had headaches I would go home after work and “crash
      and burn.” That is to say, I could not function or take care of any of
      the routine matters of caring for myself. I could not do anything
      other than go home and [] go straight to bed.

Id. at 192 (emphasis added).

      Thus, taken as a whole, the evidence showed that Ms. Allen’s migraines,

when active and treated with medication, did not permit her to perform activities

to care for herself in the evenings and compelled her to go to sleep instead. 5 But

5
       Because of this evidence, we reject SouthCrest’s argument that Ms. Allen’s
statement in her affidavit represented an attempt to create a sham issue of fact.
See Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986) (stating “courts will
disregard a contrary affidavit when they conclude that it constitutes an attempt to
create a sham fact issue”). In determining whether an affidavit has been used to
create a sham factual issue, a key inquiry is “whether the earlier testimony
reflects confusion which the affidavit attempts to explain.” Id. The statements in
Ms. Allen’s affidavit explain what Ms. Allen meant by “crash[ing] and burn[ing]”
during her deposition testimony. We therefore conclude that the affidavit was
not designed to create a sham issue of fact, but to explain her earlier testimony.
       SouthCrest further argues that until Ms. Allen submitted her affidavit with
her summary judgment response, she had never alleged a substantial limitation in
any major life activity besides working. As evidence of her failure to timely
assert a disability in the major life activity of caring for herself, SouthCrest cites
her EEOC charge and her initial complaint. In these documents, however,
Ms. Allen was not required to provide a precise description of the major life
activity allegedly affected by her disability. See Fed. R. Civ. P. 8(a)(2) (requiring
that complaint contain “a short and plain statement of the claim showing that the
pleader is entitled to relief”); 29 C.F.R. § 1601.12 (discussing required contents
of EEOC charge); Jones v. United Parcel Serv., Inc., 502 F.3d 1176, 1186
(10th Cir. 2007) (requiring that EEOC charge “contain facts concerning the
discriminatory and retaliatory actions underlying each claim,” but noting charge
is “liberally construe[d]”). SouthCrest fails to show Ms. Allen waived or failed to
                                                                          (continued...)

                                         -11-
it was her burden to make more than a conclusory showing that she was

substantially limited in the major life activity of caring for herself as compared to

the average person in the general population. See 29 C.F.R. § 1630.2(j); Johnson

v. Weld Cty., 594 F.3d 1202, 1218 & n.10 (10th Cir. 2010) (allegation of sleep

disturbance that included no basis for comparison with average person was

insufficient to carry plaintiff’s burden). A mere assertion that she took

medication and slept after arriving at home for an unspecified period when

undergoing a migraine attack rather than caring for herself was insufficient to

meet this burden.

      Ms. Allen’s allegations and evidence on this point were conclusory at best.

She presented no evidence concerning such factors as how much earlier she went

to bed than usual, which specific activities of caring for herself she was forced to

forego as the result of going to bed early, how long she slept after taking her

medication, what time she woke up the next day, whether it was possible for her

to complete the activities of caring for herself the next morning that she had

neglected the previous evening, or how her difficulties in caring for herself on

days she had a migraine compared to her usual routine of evening self-care.

      She also made no attempt to show how the alleged limitations created by

her need to “crash and burn” compared to the average person’s ability to care for

5
 (...continued)
timely assert her claim to be disabled in the major life activity of caring for
herself.

                                         -12-
herself in evenings after work. The average person, presumably, does not have to

go to bed immediately upon returning from work and/or to medicate herself with

somniferous medications to escape migraine symptoms. But this fact alone does

not meet Ms. Allen’s burden, since the average person also sleeps each evening

and cannot care for herself while asleep, and sometimes goes to bed early. See id.

at 1218 n.10 (noting, with regard to major life activity of sleeping, that many

non-disabled people have nightmares or disturbed sleep patterns; the ADA

plaintiff is obliged to present evidence that will permit comparison of the effects

of his sleep disturbances to those experienced by the average person).

      In sum, Ms. Allen’s claim of a substantial limitation in the major life

activity of caring for herself was insufficiently developed and insufficiently

supported by the evidence. It was her summary judgment responsibility to

present evidence sufficient to meet her burden of production on the “disability”

element of her prima facie case. The district court properly rejected as unproven

her claim of a substantial limitation in this major life activity.

             B. Working

      We next address the major life activity of working. Ms. Allen admitted

that her condition only affected her work for Dr. Myers. See “Objection to the

Defendants’ Motion for Summary Judgment & Brief in Support,” Aplt. App.,

Vol. II at 173 (“[A]n individual such as Allen, whose condition [a]ffects only the

single job she is performing[,] should fall under the protections of the amended

                                          -13-
ADA.” (emphasis added)). The record provides some support for this concession:

she points to no evidence she suffered migraines while working for other

physicians or on other jobs. 6

        This concession, however, poses a problem for Ms. Allen’s ADA claim. To

be disabled in the major life activity of working, an employee must be

“significantly restricted in the ability to perform either a class of jobs or a broad

range of jobs in various classes as compared to the average person having

comparable training, skills and abilities.” Heartway Corp., 466 F.3d at 1162; see

also Sutton v. United Air Lines, Inc., 527 U.S. 471, 491 (1999), superseded by

statute, ADA Amendments Act of 2008, Pub. L. No. 110–325, 122 Stat. 3553

(2008). Work for a single physician hardly qualifies as a class or broad range of

jobs.

        Ms. Allen argues, however, that under the favorable definition of disability

as clarified by the ADA Amendments Act of 2008 (ADAAA) and applied in the

new regulations promulgated under the ADAAA, she can demonstrate disability

in the major life activity of working even if she is only disabled from performing

a single job. We disagree.


6
      Ms. Allen now argues that she is disabled from a broad class of jobs. Aplt.
Opening Br. at 19-20. This, however, was not her argument in district court. See
Aplt. App., Vol. II at 172-73. We need not address her modified argument on
appeal; this court is not a “‘second-shot forum’ . . . where secondary, back-up
theories may be mounted for the first time.” Tele-Communications, Inc. v.
Comm’r of Internal Revenue, 104 F.3d 1229, 1233 (10th Cir. 1997).

                                         -14-
      We begin by examining the ADAAA’s statutory changes. Congress passed

the ADAAA with the explicit purpose of rejecting certain standards and reasoning

of Supreme Court opinions regarding interpretation of the ADA 7 and “reinstating

a broad scope of protection to be available under the ADA.” Pub. L. No. 110–325

§ 2(b)(1), 122 Stat 3553-3554 (2008). Accordingly, the ADAAA added language

to the ADA providing for a broad construction of the definition of disability. See

42 U.S.C. § 12102(4)(A) (“The definition of disability in this chapter shall be

construed in favor of broad coverage of individuals under this chapter, to the

maximum extent permitted by the terms of this chapter.”). This new language

became effective on January 1, 2009, before the relevant events in this case. See

Pub. L. No. 110-325, § 8, 122 Stat. 3559.

      The ADAAA did not, however, explicitly discuss or modify the definition

of the major life activity of working. That definition was contained in the EEOC

regulations interpreting the ADA. Prior to the 2011 revision of these ADA

regulations, the regulations specifically defined the phrase “substantially limits”

in the case of the major life activity of working to apply only to impairments that

prevented the employee from performing a class of jobs or a broad range of jobs.

Thus, the applicable regulation formerly provided:


7
     Sutton v. United Air Lines, 527 U.S. 471 (1999), and Toyota Motor
Manufacturing, Kentucky v. Williams, 534 U.S. 184 (2002).



                                        -15-
      With respect to the major life activity of working--

      (i) the term substantially limits means significantly restricted in the
      ability to perform either a class of jobs or a broad range of jobs in
      various classes as compared to the average person having comparable
      training, skills and abilities. The inability to perform a single,
      particular job does not constitute a substantial limitation in the major
      life activity of working.

29 C.F.R. § 1630.2(j)(3)(i) (2010).

      As Ms. Allen correctly points out, this language was eliminated in the

amended regulations, which took effect on May 24, 2011. Ms. Allen points to no

language in these amended regulations that indicates they are to have retroactive

effect. Nor does she present any authority that would require us to apply these

regulations retroactively to her case. Cf. EEOC v. AutoZone, Inc., 630 F.3d 635,

641 n.3 (7th Cir. 2010) (applying prior statutory definition of “substantially

limits,” together with case law interpreting that statute and existing implementing

regulations, where plaintiff’s claim arose prior to ADAAA amendment). But even

if we consulted the amended regulations as an aid to statutory interpretation of the

ADAAA (which does apply to this case), as Ms. Allen urges us to do, they would

offer her no support.

      Ms. Allen argues that the omission of the narrowing language in the 2011

version of the regulation reflects congressional intent to broaden the scope of the

definition of disability by eliminating the “class of jobs or broad range of jobs”

limitation on the major life activity of working. But as the Interpretive Guidance


                                         -16-
to Part 1630, which also became effective May 24, 2011, explains, the language

was actually eliminated for a very different reason:

       The Commission has removed from the text of the regulations a
       discussion of the major life activity of working. This is consistent
       with the fact that no other major life activity receives special
       attention in the regulation, and with the fact that, in light of the
       expended definition of disability established by the Amendments
       Act, this major life activity will be used in only very targeted
       situations.

“Substantially Limited in Working,” Appendix to Part 1630--Interpretive

Guidance on Title I of the Americans With Disabilities Act, 29 C.F.R. Pt. 1630,

App.

       Moreover, the Interpretive Guidance goes on to explain that the “broad

class of jobs” restriction remains in place even after the amendment to the

regulations:

       In the rare cases where an individual has a need to demonstrate that
       an impairment substantially limits him or her in working, the
       individual can do so by showing that the impairment substantially
       limits his or her ability to perform a class of jobs or broad range of
       jobs in various classes as compared to most people having
       comparable training, skills, and abilities.

                                         ...

       Demonstrating a substantial limitation in performing the unique
       aspects of a single specific job is not sufficient to establish that a
       person is substantially limited in the major life activity of working.

Id.




                                         -17-
      Thus, we conclude based on our existing case law, Supreme Court case law,

the applicable statute, and the regulations, that to show a disability in the major

life activity of working, Ms. Allen was required, even after the enactment of the

ADAAA and the modified EEOC regulations, to demonstrate that she was

substantially limited in performing a class of jobs or broad range of jobs in

various classes as compared to most people with comparable training, skills, and

abilities. She failed to do so.

      For the foregoing reasons, Ms. Allen failed to meet her summary judgment

burden to establish a prima facie case of disability discrimination. The district

court therefore properly granted summary judgment to SouthCrest on her ADA

claims.

      The judgment of the district court is AFFIRMED.


                                                     Entered for the Court



                                                     Scott M. Matheson, Jr.
                                                     Circuit Judge




                                         -18-
