                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                       November 29, 2005
                     UNITED STATES COURT OF APPEALS

                            FOR THE TENTH CIRCUIT                         Clerk of Court



    JANICE MARIE NICKOLA,

                Plaintiff-Appellant,

    v.                                                   No. 04-1403
                                                 (D.C. No. 02-M-1605 (MJW))
    STORAGE TECHNOLOGY                                    (D. Colo.)
    CORPORATION,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before KELLY, McKAY , and McCONNELL , Circuit Judges.




         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      This order and judgment is not binding precedent, except under the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. 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 Janice Marie Nickola, proceeding pro se here as in the district

court, appeals the district court’s entry of summary judgment in favor of her

former employer Storage Technology Corp. (StorageTek) on her claims brought

pursuant to the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213

(ADA). We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

Ms. Nickola has filed a motion to supplement the record, which StorageTek

opposes. We grant the motion to supplement.

                                   I. Background

       Ms. Nickola was employed in the manufacturing division of StorageTek.

Due to an October 2000 injury to her right hand and wrist, she was placed on light

duty and then transferred to the Transitional Duty Department, where she worked

until her employment with StorageTek ended. Ms. Nickola informed her

employer that she would not return to any manufacturing position, and she sought

another type of job within the company. She was looking for a big promotion

from her manufacturing job, R. Vol. I, Doc. 65, Ex. A, at 278, and she applied for

positions such as director of corporate alliances, business process consultant, and

strategic planning analyst, even though by her own admission, she was not

qualified for them.   Id. Doc. 65, Ex. A, at 284; Exs. L & M. Although she was

qualified for secretarial work, she did not apply for those jobs because she


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preferred a position more suited to her personality and career goals.   1
                                                                            Id. Vol. I,

Doc. 65, Ex. A, at 207;    id. Vol. II, Doc. 84, Ex. 35, at 5. Ms. Nickola declined an

opportunity for a position as a business analyst.     Id. at 170-71.

       The medical evidence pertaining to Ms. Nickola’s hand and wrist injury

consisted of the treatment notes of the on-site physician, Randy Reims, M.D., the

second opinion of another physician, Dr. Fry, that Ms. Nickola required additional

treatment, and the determination of the workers’ compensation board that

Ms. Nickola’s injury resulted in an eighteen percent permanent partial disability.

Dr. Reims’s notes indicated that the only activities Ms. Nickola should limit were

lifting, carrying, and removing staples with her right hand. On February 23,

2001, Dr. Reims released her to work without restriction, with the understanding

that she had decided not to return to her former job in the manufacturing division.

Ms. Nickola, who had not found another position with StorageTek, then left its

employ. The parties dispute whether she resigned or was discharged, but the

circumstances of her termination are irrelevant, as explained below.



1
       Ms. Nickola testified at her deposition that she did not want a secretarial
position. Citing Franks v. Nimmo , 796 F.2d 1230, 1237 (10th Cir. 1986), she
asserts that her deposition testimony is not binding. Ms. Nickola’s situation is
unlike that in Franks because Ms. Nickola’s deposition testimony does not
conflict with her later affidavit. Both the testimony and the affidavit explain that
she did not want a secretarial position.  Cf. id. (holding that plaintiff’s affidavit,
that conflicted with his earlier sworn testimony, should be disregarded on
summary judgment as raising a sham fact issue).

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       After exhausting her administrative remedies, Ms. Nickola brought this

action alleging that she was a qualified individual with a disability, as defined in

the ADA, and that StorageTek discriminated against her on the basis of her

disability. She asserted that her impairment substantially limited her ability to

perform the major life activity of “working.” The district court granted summary

judgment to StorageTek and denied Ms. Nickola’s post-judgment motion.

Ms. Nickola appeals the rulings against her on her ADA claims.      2



                            II. Summary Judgment Standards

       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.

Lanman v. Johnson County, 393 F.3d 1151, 1154-55 (10th Cir. 2004). 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, 322-23 (1986); Fed. R. Civ. P. 56(c). Summary judgment will be

granted to defendant if plaintiff “fails to make a showing sufficient to establish

the existence of an element essential to that party’s case, and on which that party

will bear the burden of proof at trial.”   Celotex Corp. , 477 U.S. at 322.   “Thus, to



2
      Ms. Nickola has abandoned on appeal her claims based on other legal
theories, including those for defamation, a federal contractor’s duty concerning
affirmative action, and violation of Title VII. She does not appeal the order
denying her post-judgment motion.

                                           -4-
survive summary judgment the plaintiff has the burden to put forth sufficient

evidence to warrant a verdict as a matter of law; a scintilla of evidence will not

suffice.” Lanman, 393 F.3d at 1154-55. Ms. Nickola is representing herself on

appeal so her pleadings will be liberally construed. See Haines v. Kerner, 404

U.S. 519, 520-21 (1972).

                          III. Americans with Disabilities Act

       The ADA requires StorageTek to provide “reasonable accommodations to

the known physical or mental limitations of an otherwise qualified individual with

a disability who is an applicant or employee, unless [StorageTek] can demonstrate

that the accommodation would impose an undue hardship on the operation of [its]

business.” 42 U.S.C. § 12112(b)(5)(A). A “qualified individual with a disability”

is a person “who, with or without reasonable accommodation, can perform the

essential functions of the employment position that [she] holds or desires.”     Id.

§ 12111(8). In this context, “disability” means that an individual has “(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 an impairment; or (C) being

regarded as having such an impairment.”       Id. § 12102(2).

       Ms. Nickola asserts that she is a qualified individual with a disability who

has a physical impairment that substantially limits the major life activity of

working. She also alleges that StorageTek discriminated against her on the basis


                                            -5-
of her actual disablity and because it regarded her as disabled. We determine that

she has waived any claim based on a record of her impairment because she did not

raise it in her opening brief on appeal.       State Farm Fire & Cas. Co. v. Mhoon       , 31

F.3d 979, 984 n.7 (10th Cir. 1994).

       Ms. Nickola bears the burden of establishing a prima facie case.          See

MacKenzie v. City & County of Denver         , 414 F.3d 1266, 1274 (10th Cir. 2005)

(holding in summary-judgment context, “plaintiff initially must raise a genuine

issue of material fact on each element of the prima facie case”). To do so, she

must demonstrate that (1) she is a disabled person as defined by the ADA; (2) she

is qualified, with or without reasonable accommodation; and (3) she was

discriminated against due to her disability.          Aldrich v. Boeing Co. , 146 F.3d 1265,

1269 (10th Cir. 1998). We conclude that Ms. Nickola has not established the first

criterion – that she is disabled as defined by the ADA – and, therefore, the other

criteria are irrelevant, including the issue of whether she resigned or was fired.

                                   (A) Actually Disabled

       Under § 12102(2)(A), a plaintiff must establish that “an impairment

substantially limits at least one major life activity.”       Doebele v. Sprint/United

Mgmt. Co. , 342 F.3d 1117, 1129 (10th Cir. 2003). “‘Substantially’ in the phrase

‘substantially limits’ suggests ‘considerable’ or ‘ to a large degree.’”        Toyota

Motor Mfg., Ky., Inc. v. Williams     , 534 U.S. 184, 196 (2002). A claimant is not


                                                -6-
disabled for ADA purposes merely by having an impairment.        Id. at 195. A

claimant must also “demonstrate that the impairment limits a major life activity.”

Id.

       Ms. Nickola asserts that her wrist injury prevents her from performing the

essential functions of her former manufacturing job pertaining to pushing tubing

onto a plastic elbow joint and pounding the parts into position. To establish that

this injury is disabling, she relies on the notes from Dr. Reims and Dr. Fry and the

determination from the workers’ compensation board that she sustained an

eighteen percent permanent partial disability. She concedes, however, that her

wrist impairment does not limit other activities and that she does not consider

herself to be disabled. R. Vol. I, Doc. 65, Ex. A, at 329-30;   id. Ex. EE, at 1. The

doctors’ reports and workers’ compensation determination, without evidence of

substantial limitations caused by the impairment, are insufficient to establish

disability status under the ADA.     Cf. Toyota Motor , 534 U.S. at 198 (holding

evidence of medical diagnosis of an impairment is insufficient, standing alone, to

prove disability status in performing manual tasks). We hold that Ms. Nickola’s

showing that she cannot perform the specific manual tasks required for her former

manufacturing position is insufficient to demonstrate genuine fact issues as to

whether she was substantially limited in the major life activity of working.

Therefore, because she cannot make out the first element of a prima facie case,


                                            -7-
Ms. Nickola’s ADA “actually disabled” claim must fail, and the entry of summary

judgment in StorageTek’s favor was correct.

                                (B) Regarded as Disabled

       Ms. Nickola next asserts that she is entitled to protection under the ADA

because StorageTek regarded her as disabled. There are two ways an individual

may qualify under the “regarded as” section, § 12102(2)(C): (1) the employer

“mistakenly believes that a person has a physical impairment that substantially

limits one or more major life activities,” or (2) the employer “mistakenly believes

that an actual, nonlimiting impairment substantially limits one or more major life

activities.” Sutton v. United Air Lines, Inc.      , 527 U.S. 471, 489 (1999). To

withstand summary judgment under this rule, Ms. Nickola must come forward

with triable evidence showing that StorageTek regarded her as substantially

limited in her identified major life activity of working.      Rakity v. Dillon

Companies, Inc., 302 F.3d 1152, 1162 (10th Cir. 2002). “[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).




                                             -8-
       Ms. Nickola argues that StorageTek regarded her as disabled because it did

not offer her a job after she was medically released and because it could not find

a position in the entire organization for her. She claims that since StorageTek

was aware of her on-the-job injury that prevented her from returning to her

manufacturing position, its failure to find her a different job demonstrates that it

regarded her as disabled under the ADA.        See R. Supp. Vol. IA, at 14.

       Ms. Nickola’s argument is disingenuous. First, StorageTek invited and

assisted her to apply for other jobs within the company, which indicated that it did

not regard her as substantially limited in her ability to work.   See McGeshick v.

Principi , 357 F.3d 1146, 1151 (10th Cir. 2004) (stating employer’s invitation to

plaintiff to apply for jobs indicated that employer “did not perceive [plaintiff] as

substantially limited in his ability to perform major life activities”). Moreover,

Ms. Nickola concedes that StorageTek provided her an opportunity for a position

as a business analyst, but she declined it.    StorageTek’s job opportunity “clearly

shows [Ms. Nickola] was not perceived as unable to perform an entire class or

broad range of jobs.” Lanman, 393 F.3d at 1158 (reviewing employer’s continued

willingness to employ plaintiff); see also Rakity, 302 F.3d at 1164 (holding

employer’s continuing willingness to employ plaintiff in his current position

amounted to undisputed evidence that it did not regard him as substantially

limited in his ability to work); cf. Doebele, 342 F.3d at 1134 (holding fact-finder


                                              -9-
could infer that supervisors believed plaintiff was precluded from broad range of

jobs by their refusal to consider position for plaintiff that would implement her

doctor’s requested accommodations at a time company was hiring 200-300 people

a week). Accordingly, we hold that Ms. Nickola has failed to demonstrate a

genuine issue of material fact on her claim that StorageTek regarded her as

disabled. Consequently, summary judgment in favor of StorageTek on this claim

was appropriate.

                                  IV. Conclusion

      Ms. Nickola’s motion to supplement the record is granted. The judgment of

the district court is AFFIRMED. The mandate shall issue forthwith.



                                                    Entered for the Court



                                                    Michael W. McConnell
                                                    Circuit Judge




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