                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-2608
                                   ___________

Joseph Tyma,                            *
                                        *
                   Appellant,           *
                                        * Appeal from the United States
      v.                                * District Court for the District
                                        * of Nebraska.
The City of Grand Island, in the        *
State of Nebraska,                      *      [UNPUBLISHED]
                                        *
                   Appellee.            *
                                   ___________

                             Submitted: March 11, 2004

                                   Filed: March 18, 2004
                                    ___________

Before WOLLMAN, FAGG, and HANSEN, Circuit Judges.
                          ___________

PER CURIAM.

       Joseph Tyma suffered a brain aneurysm that resulted in severe short-term
memory loss. At the time of his injury, Tyma was a senior equipment operator for the
City of Grand Island’s streets division. Senior equipment operators operate heavy
machinery and function independently without supervision or guidance. Six months
after Tyma’s injury, Tyma returned to work under an on-the-job evaluation program
with on-site observation and peer/supervisor consultation with a job coach. For the
next four months, Tyma worked in the sign and signal subdivision to determine his
capabilities. According to the undisputed facts, Tyma required constant direction
from another person to function productively. After Tyma was cleared to drive, the
City placed him in the surface maintenance subdivision operating heavy equipment.
Tyma experienced several memory-related problems on the job, such as repeatedly
forgetting how to fuel the road grader, forgetting which grader he was supposed to
use, being unable to locate the gravel roads he was assigned to maintain even though
he had maintained the same roads before his illness, was provided maps of the
assigned areas, and was personally taken to the assigned areas several times, and
either failed to do any maintenance or graded unassigned areas. The City then
assigned Tyma to work temporarily on the asphalt patch crew. Because of memory
problems, Tyma was unable to perform the duties of that job as well. After an
administrative process, the City terminated Tyma’s employment.

       Tyma later brought this action asserting his termination violated the Americans
with Disabilities Act (ADA). The City filed a motion for summary judgment. In
response, Tyma filed three affidavits. The City sought to strike most of the affidavits’
contents because of insufficient foundation and lack of personal knowledge, and
because the affidavits contained hearsay and presented evidence on issues outside the
pleadings. After granting summary judgment to the City, the district court* stated,
“Inasmuch as I did not rely on the portions of evidence to which the City objects, I
shall deny the motion as moot.” Tyma appeals, and we affirm.

       To obtain relief under the ADA, Tyma must show, among other things, that he
is a qualified individual under the ADA. Alexander v. Northland Inn, 321 F.3d 723,
726 (8th Cir. 2003). To survive summary judgment on this point, Tyma must make
a prima facie showing he could perform the essential functions of his job with or
without reasonable accommodation. Id. at 726-27. The district court concluded
Tyma failed to do so. The district court held as a matter of law that given the


      *
        The Honorable Richard G. Kopf, Chief Judge, United States District Court
for the District of Nebraska.

                                          -2-
undisputed evidence, Tyma could not perform the essential functions of a senior
equipment operator, with or without reasonable accommodation, and thus was not a
“qualified individual” for purposes of the ADA.

        Tyma contends that in reaching this conclusion, the district court ignored the
evidence he submitted in response to the City’s summary judgment motion. We
disagree. The court simply decided the evidence was insufficient to create a genuine
issue of material fact. Nothing in the evidence Tyma offered contradicts the
undisputed material facts found by the district court or shows Tyma could perform
the essential functions of his job as a senior equipment operator, with or without
reasonable accommodation. Tyma stated in his affidavit that he felt he could have
performed the senior equipment operator job with additional accommodation. The
district court specifically acknowledged this statement, but noted Tyma offered no
evidence to support it, stating, “Tyma’s bare assertion that additional
accommodations would have enabled him to perform the essential functions of his job
is ‘sheer speculation’ that is insufficient to create a material issue of fact.” Basith v.
Cook County, 241 F.3d 919, 930-31 (7th Cir. 2001). Likewise, the other affidavits
presented did not create a genuine issue of material fact on the critical issues in
question.

       Tyma also argues there is a genuine issue of material fact about whether he
could perform the essential functions of his job because he received a favorable job
evaluation, the City restructured his job for a year and a half, and he continued to
work until his termination. The evaluation’s overall rating was qualified by
explanations that Tyma was trying hard, but through no fault of his own, could not
perform his job duties. The affidavit of Tyma’s supervisor shows he simply gave
Tyma an “A” for effort. As for the job restructuring, the City had no obligation to
reassign workers to help Tyma perform his job. Alexander, 321 F.3d at 727-28. The
City’s act of allowing Tyma to continue working until his termination does not show
he could perform the essential functions of his job. Indeed, the undisputed evidence

                                           -3-
indicates otherwise. Tyma’s own belief he could perform the job with further
accommodations is simply speculative. Basith, 241 F.3d at 930-31.

       Last, Tyma contends summary judgment was inappropriate because the district
court did not consider whether the City failed to participate in the interactive process
before terminating his employment. This issue was not raised by the pleadings or
appropriate in light of the evidence, however. There is no evidence showing Tyma
asked for any accommodation that was not provided, or there was an available
reasonable accommodation that would not have placed an undue hardship on the City.
See Ballard v. Rubin, 284 F.3d 957, 960 (8th Cir. 2002).

       Having carefully considered all of Tyma’s arguments, we conclude the district
court properly granted summary judgment to the City. We thus affirm the district
court.
                       ______________________________




                                          -4-
