                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   __________

                                   No. 99-1335
                                   __________

Raymond Shipley,                         *
                                         *
      Plaintiff - Appellant,             *
                                         * Appeal from the United States
      v.                                 * District Court for the Eastern District
                                         * of Missouri.
City of University City; University      *
City Fire Department,                    *
                                         *
      Defendants - Appellees.            *
                                    ___________

                             Submitted: September 17, 1999
                                 Filed: November 19, 1999
                                  ___________

Before McMILLIAN and MURPHY, Circuit Judges, and TUNHEIM,* District
Judge.
                          __________


MURPHY, Circuit Judge.


       After the City of University City, Missouri declined to reinstate him as a
firefighter, Raymond Shipley sued the city under Title I of the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. (1994) and Section 504 of the



   *The HONORABLE JOHN R. TUNHEIM, United States District Judge for the
District of Minnesota, sitting by designation.
Rehabilitation Act, 29 U.S.C. § 794 (1994), seeking monetary and injunctive relief,
including reinstatement. The district court2 granted summary judgment for
University City, and Shipley appeals.3

       Shipley began work as a firefighter for University City in 1974. Two years
later he was severely injured on the job and retired with a disability pension. After
several years of physical therapy, he successfully applied to the Police and
Firemen's Retirement Board for reinstatement as a firefighter. Shipley retired once
more in 1990 after he was injured in a fall from a truck, and was employed at
various times as a car wash attendant, a salesman, a dry cleaner, and a dish washer
repairman. In 1994 he again applied for reinstatement and supplied the board with
supporting letters from several doctors. The board voted unanimously to deny his
request to return to duty as a firefighter. The minutes of its meeting indicate that it
denied the request in order "to safeguard Mr. Shipley, the citizens, and his fellow
firefighters."

       In his complaint Shipley alleged that University City violated the ADA and
the Rehabilitation Act by refusing to reinstate him because it regarded him as being
disabled. The district court later concluded that Shipley had not created a material
issue of fact on the question of whether he was regarded as substantially limited in
one or more major life functions within the meaning of either statute and granted
summary judgment to the City.


      2
        The Honorable Jean C. Hamilton, Chief Judge, United States District Court
for the Eastern District of Missouri.
      3
       There are also two motions pending. Shortly before oral argument Shipley
moved to dismiss his claim under 42 U.S.C. § 1983 which alleged that he had not
received the process he was due. The City has moved to strike portions of Shipley's
separate appendix because they were not part of the record before the district court;
Shipley has offered no response. We grant both motions.

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        On appeal Shipley argues that there are material issues of fact concerning his
allegation that he was not reinstated because the city regarded him as having an
impairment which interfered with major life activities. Shipley also suggests for the
first time on appeal that the city did not reinstate him due to his having a record of
an impairment which interfered with major life activities. University City responds
that because he is precluded only from working as a firefighter, as a matter of law
Shipley's impairment does not substantially limit a major life function. The city also
argues that Shipley has waived his new claim of a record of impairment by failing to
raise it below. Our review is de novo. Aucutt v. Six Flags Over Mid-America, 85
F.3d 1311, 1315 (8th Cir. 1996).

       Title I of the ADA bars employers from discriminating against "a qualified
individual with a disability because of the disability of such individual in regard to . .
. hiring, advancement, or discharge." 42 U.S.C. § 12112(a). A qualified individual
is a person who "with or without reasonable accommodation can perform the
essential functions" of the job in question. 42 U.S.C. § 1211(8). Disability is
defined as:

             (A) a physical or mental impairment that substantially
             limits one or more of the major life activities of such
             individual;
             (B) a record of such impairment;
             (C) being regarded as having such an impairment.

42 U.S.C. § 12102(2). Although major life activity is not defined by the ADA, the
Supreme Court has interpreted the term to include functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. Bragdon v. Abbott, 524 U.S. 624, 638-639 (1998). The
same basic standards and definitions are used under both the ADA and the
Rehabilitation Act so cases interpreting either may be relevant to the other. Allison

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v. Department of Corrections, 94 F.3d 494, 497 (8th Cir. 1996). To recover under
either statute, Shipley must demonstrate that the City refused to reinstate him as a
firefighter because it regarded him as substantially limited in one or more major life
activities.

        The Supreme Court clarified what constitutes a substantial limitation of a
major life activity in two cases decided last June. In Sutton v. United Air Lines, ---
U.S. ---, 119 S.Ct. 2139 (1999), the Court held that when the major life activity
under consideration is that of working, a substantial limitation requires that plaintiffs
be "unable to work in a broad class of jobs." Id. at 2151. The Sutton plaintiffs had
complained that they were not hired as commercial airline pilots because the airline
regarded their myopia as substantially limiting them in the major life activity of
working. This theory did not state a claim under the ADA since an employer may
lawfully exclude an employee with limited physical capacities from a particular job.
"By its terms, the ADA allows employers to prefer some physical attributes over
others and to establish physical criteria" even if those criteria would substantially
limit a person's employment opportunities if they were adopted by a large number of
employers. Id. at 2150-52. It is not enough for a plaintiff to demonstrate that he is
regarded as unable to perform a particular job or type of job. Id. at 2151. To be
regarded as substantially limited in the major life activity of working, one must be
regarded as precluded from a substantial class of jobs. Id. In the companion case,
Murphy v. United Parcel Serv., --- U.S. ---, 119 S.Ct. 2133 (1999), a mechanic who
had been diagnosed with high blood pressure lost his Department of Transportation
certification and was dismissed from his job. He sued, claiming that his employer
regarded him as disabled within the meaning of the ADA. His employer was
entitled to summary judgment because Murphy put forward no evidence
demonstrating that he was regarded as unable to perform a class of jobs. Id. at
2139.

      Murphy and Sutton demonstrate that an ADA plaintiff must do more than

                                           -4-
allege that he is regarded as having an impairment which prevents him from working
at a particular job. A plaintiff must demonstrate that he is regarded as precluded
from a broad class of jobs. The record in this case indicates that Shipley was able
to perform a variety of jobs, and University City is entitled to summary judgment
because it regarded him only as unable to perform the job of firefighter.

       A claim nearly identical to Shipley's was rejected several years ago in Smith
v. City of Des Moines, Iowa, 99 F.3d 1466 (8th Cir. 1996). The plaintiff in Smith
was a firefighter whose department had dismissed him because he could not pass the
pulmonary function testing it required of all firefighters. Smith alleged that his
employer terminated him because it regarded him as having a substantially limiting
impairment within the meaning of the ADA. Smith alleged only that he was
regarded as having an impairment which disqualified him from a narrow range of
jobs, and thus as a matter of law he was not "substantially limited". Id. at 1474.
Because Smith did not produce evidence that he was regarded as unable to perform
other jobs besides that of firefighter, his ADA claim failed. Shipley's claim fails for
the same reason.

        Shipley has attempted to recast his claim on appeal to distinguish it from
these precedents. Shipley cites the effect his injuries have had on his "walking,
lifting, and excreting," complaining that the district court improperly disregarded the
ways in which these major life activities have been impaired. It is not at all clear
that he ever directed this theory to the attention of the district court. Moreover,
Shipley has not produced evidence that he was terminated for any reason other than
the retirement board's concerns about his capacity to perform as a firefighter. The
record indicates only that he was not reinstated because University City believed he
was unable to meet the requirements of that position. Shipley has not made out a
claim under either the ADA or the Rehabilitation Act.

      For these reasons, the judgment of the district court is affirmed.

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A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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