                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          DEC 12 2001
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    JODIE THOMAS CARLILE, III,

                 Plaintiff-Appellant-
                   Cross-Appellee
    v.                                             No. 00-2345 & 00-2383
                                               (D.C. No. CIV-98-1463-LH/DJS)
    CONOCO, INC.,                                         (D. N.M.)

                 Defendant-Appellee-
                   Cross-Appellant.


                             ORDER AND JUDGMENT           *




Before KELLY , BALDOCK , and LUCERO , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are

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      This order and judgment is not binding precedent, except under the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. 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.
      Plaintiff Jodie Thomas Carlile, III, sued his former employer for

terminating his employment in violation of the Americans with Disabilities Act,

42 U.S.C. §§ 12101-12213 (ADA). The district court entered summary judgment

in favor of defendant and plaintiff appeals. Defendant cross appeals the district

court’s order denying its request for attorney fees as a prevailing party under 42

U.S.C. § 12205. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.


                                 Underlying Facts

      The parties are familiar with the facts. Therefore, we provide only a brief

summary. Plaintiff was employed by defendant as a mechanic and welder’s

technician at its gas plant. Beginning in 1993, plaintiff suffered occasional brief

periods of unconsciousness. Defendant’s medical director imposed restrictions on

plaintiff’s work environment, such as not working at heights, around heavy

moving equipment, or high heat sources. Consequently, plaintiff’s employment

was terminated in May 1996 because the medical restrictions prevented him from

doing his past job and there were no other positions that would accommodate his

restrictions. He sued, claiming defendant violated the ADA because it regarded

him as disabled and unable to perform any of the jobs at its gas plant. The district

court entered summary judgment in favor of defendant, but denied defendant’s

request for an award of attorney fees. Both parties appeal.



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                                 Jurisdictional Challenge

       As a preliminary matter, we address defendant’s motion to dismiss

plaintiff’s appeal. Defendant charges that plaintiff’s notice of appeal was

untimely, thus divesting this court of jurisdiction.      See Parker v. Bd. of Pub.

Utils. , 77 F.3d 1289, 1290 (10th Cir. 1996) (“The filing of a timely notice of

appeal is an absolute prerequisite to [appellate] jurisdiction.”). The judgment was

entered on May 31, 2000. On June 12, 2000, plaintiff filed a pro se motion for

reconsideration. On June 15, 2000, plaintiff’s attorney filed a motion for

reconsideration. Only the pro se motion, filed within ten days of the judgment,

could toll the running of the time limit for filing a notice of appeal.    See Fed. R.

App. P. 4(a)(4) (time to appeal runs from entry of the order disposing of Rule 59

motion); Trotter v. Regents of Univ. of N.M.        , 219 F.3d 1179, 1183 (10th Cir.

2000) (motion filed within ten days of judgment questioning its correctness

treated as Rule 59 motion; if Rule 59 motion is made within ten days from

judgment, time to appeal runs from order disposing of motion). Counsel’s

reliance on Fed. R. Civ. P. 6(e) for an additional three days to mail his motion is

misplaced. Rule 6(e) provides for an additional three days for mailing when the

paper deserving a response     is served upon the party by mail. The summary

judgment and final order documents were sent to plaintiff’s attorney by facsimile




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transmission on May 31, 2000. Consequently, plaintiff was not entitled to an

additional three days for mailing.   1



       The issue is whether the pro se motion to reconsider tolled the time to file a

notice of appeal or whether, as defendant argues, only a motion signed by a

represented party can do so. Defendant invokes Fed. R. Civ. P. 11(a) and

D.N.M.L.R. 83.5 for the requirement that every pleading be signed by the attorney

of record. We decline to hold that a party who successfully protected his rights

must forfeit them in favor of a rigid reading of the rules. Instead, we conclude

that the pro se motion to reconsider served to toll the time for filing a notice of

appeal. Accordingly, the notice of appeal was timely because it was filed on

September 8, 2000, within thirty days after the August 24, 2000 order disposing

of the motion to reconsider. Fed. R. App. P. 4(a)(1)(A). Moreover, the notice of

appeal served to permit our consideration of the summary judgment’s merits.       See

Grubb v. FDIC , 868 F.2d 1151, 1154 n.4 (10th Cir. 1989) (appeal from order

denying Rule 59 motion sufficient to permit consideration of judgment’s merits if

appeal is “otherwise proper, the intent to appeal from the final judgment is clear,




1
      Effective December 1, 2001, amendments to Rules 5 and 6 of the Federal
Rules of Civil Procedure provide for three additional days to respond to a
pleading served by electronic means or through the court’s transmission facilities.
Fed. R. Civ. P. 6(e) (referring to service under Rule 5(b)(2)(D)). This case was
decided under the rules in effect prior to December 1.

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and the opposing party was not misled or prejudiced”). Therefore, we have

jurisdiction over plaintiff’s appeal.



                                   Plaintiff’s Appeal

       Turning to the merits, we review   de novo the district court’s grant of

summary judgment, viewing the record in the light most favorable to the party

opposing summary judgment. McKnight v. Kimberly Clark Corp., 149 F.3d 1125,

1128 (10th Cir. 1998). Summary judgment is appropriate if there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter of

law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c).

       A prima facie case under the ADA requires that a plaintiff show “(1) that

[he] is disabled within the meaning of the ADA; (2) that [he] is qualified–with or

without reasonable accommodation; and (3) that [he] was discriminated against

because of [his] disability.”   McKenzie v. Dovala , 242 F.3d 967, 969 (10th Cir.

2001) (quotation omitted). Disability under the ADA may be established by a

plaintiff who is regarded as having an impairment that substantially limits one or

more major life activity. 42 U.S.C. § 12102(2).

       On appeal, plaintiff contends that he met the first prong of a prima facie

case by showing that he was “disabled” because defendant regarded him as having

a disability. He maintains that defendant regarded him as substantially limited in


                                           -5-
the major life activity of working because none of the jobs at defendant’s gas

plant could accommodate the restrictions imposed on plaintiff by its medical

director.

       “[I]n order to establish a disability under the ‘regarded as’ prong of the

ADA with respect to the major life activity of working, an individual must show

that the employer regarded him or her as being substantially limited in performing

either a class of jobs or a broad range of jobs in various classes.”        Steele v.

Thiokol Corp. , 241 F.3d 1248, 1256 (10th Cir. 2001) (quotation omitted);           accord

Sutton v. United Air Lines, Inc.    , 527 U.S. 471, 491 (1999). Here, plaintiff’s

claim is based on defendant’s determination that he could not perform any of the

nine jobs at its gas plant.

       It is undisputed that since the time his employment with defendant was

terminated, plaintiff has been working as a welder, as well as a mechanic and

roustabout. The undisputed record evidence demonstrates that plaintiff is, at

most, regarded as unable to perform the welding jobs at defendant’s gas plant. He

presented no evidence to show that defendant regarded him as being substantially

limited in performing either a class of jobs or a broad range of jobs in various

classes. “This is insufficient, as a matter of law, to prove that petitioner is

regarded as substantially limited in the major life activity of working.”         Murphy

v. United Parcel Serv., Inc. , 527 U.S. 516, 525 (1999). Therefore, plaintiff has


                                             -6-
not established a prima facie case because he has not established that he is

“disabled” under the ADA. Accordingly, summary judgment in favor of

defendant was correct.

                                Defendant’s Cross Appeal

       For its cross appeal, defendant challenges the district court’s order denying

its request for attorney fees. The ADA authorizes the district court, in its

discretion, to award attorney fees to the prevailing party. 42 U.S.C. § 12205.

Defendant claims it is entitled to attorney fees because plaintiff’s case was

frivolous and filed in bad faith.

       We review the district court’s attorney-fee decision for an abuse of

discretion. Roe v. Cheyenne Mountain Conference Resort, Inc.           , 124 F.3d 1221,

1231 (10th Cir. 1997). We apply a de novo review to the district court’s statutory

interpretation and legal analysis.      Id.

       A prevailing defendant may recover attorney fees “upon a finding that the

plaintiff’s action was frivolous, unreasonable, or without foundation, even though

not brought in subjective bad faith.”         Christiansburg Garment Co. v. EEOC   , 434

U.S. 412, 421 (1978) (addressing attorney fees under Title VII; made applicable

to ADA by Roe , 124 F.3d at 1232 & n.7). The district court should not, in

hindsight, characterize a plaintiff’s case as frivolous simply because it was

ultimately unsuccessful.    Id. at 421-22.


                                                -7-
      Defendant claims the district court’s legal analysis was flawed because it

failed to consider various factors in evaluating frivolousness and because it

wholly failed to consider the bad-faith argument. The district court stated,

however, that it had considered the parties’ pleadings. Therefore, we assume that

the district court reviewed and considered defendant’s arguments.      Cf. Green v.

Branson , 108 F.3d 1296, 1305 (10th Cir. 1997) (appellate court assumes district

court reviewed magistrate judge’s report). We are satisfied from our review of

the record that the district court properly exercised its discretion in ruling that a

fee award was not warranted.

      Defendant’s motion to dismiss plaintiff’s appeal is denied. The judgment

of the United States District Court for the District of New Mexico is AFFIRMED.



                                                      Entered for the Court



                                                      Paul J. Kelly, Jr.
                                                      Circuit Judge




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