                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          DEC 13 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ANNA Z. BUTLER,

                Plaintiff-Appellant,

    v.                                                   No. 99-6144
                                                    (D.C. No. 98-CV-1164)
    WAL-MART STORES, INC., a                             (W.D. Okla.)
    foreign corporation,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before ANDERSON , BARRETT , and BRISCOE , Circuit Judges.




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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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      This order and judgment is not binding precedent, except under the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 Anna Z. Butler appeals from an order of the district court granting

defendant’s motion for summary judgment in this case brought pursuant to the

Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. We affirm.

      Ms. Butler was employed by defendant from 1993 until 1997 when she was

terminated. In 1995, Ms. Butler suffered an on-the-job injury to her knee and

back which required three surgeries. Although defendant has no permanent light

duty positions, it provided Ms. Butler with temporary light duty positions after

each surgery, as she was medically restricted from prolonged standing. In

October 1997, Ms. Butler was assigned to the position of people greeter, a

position requiring prolonged standing. Ms. Butler informed defendant that she

needed a stool to sit on for relief from the constant standing. Defendant then

requested a statement from Ms. Butler’s physician detailing her current physical

restrictions. Ms. Butler presented a two-year old note stating that her restrictions

were permanent and that she needed to avoid prolonged standing. At that point,

defendant realized that her permanent restrictions would prevent her from

carrying out the essential job duties of all the permanent positions in the store and

terminated her.

      Ms. Butler commenced this action. The district court granted defendant’s

motion for summary judgment. The court concluded that Ms. Butler had

presented no evidence that she was “in fact a disabled person within the meaning


                                         -2-
of the ADA.” Plaintiff’s App. at 10. The court noted that, in her deposition,

Ms. Butler had testified that she believed she had no condition that restricted her

from performing any life activity and she could meet the physical requirements of

the position of people greeter. The court declined to exercise jurisdiction over

Ms. Butler’s pendent state law claims and dismissed them without prejudice.

      On appeal, Ms. Butler argues she is a qualified individual with a disability,

that defendant perceived her as disabled, and that she should not have been

required to produce a letter from her doctor detailing her restrictions. Ms. Butler

concludes the court erred in granting defendant’s motion for summary judgment.

      “We review the entry of summary judgment de novo, drawing all

reasonable inferences in favor of the nonmovants.” Hulsey v. Kmart, Inc., 43

F.3d 555, 557 (10th Cir. 1994). The moving party must show there is no genuine

issue as to any material fact and it is entitled to judgment as a matter of law. See

id. The nonmovant must establish, at a minimum, an inference of the presence of

each element essential to the case. See id. Although we must resolve doubts in

favor of the non-moving party, “conclusory allegations standing alone will not

defeat a properly supported motion for summary judgment.”           White v. York Int’l

Corp. , 45 F.3d 357, 363 (10th Cir. 1995). We may affirm the district court’s

judgment for any reason for which there is support in the record.       See Perry v.

Woodward , 188 F.3d 1220, 1232 (10th Cir. 1999).


                                            -3-
       The ADA prohibits discrimination “against a qualified individual with a

disability because of the disability” in stated employment actions, including

employee discharge.      See 42 U.S.C. § 12112(a). A “qualified individual with a

disability” is “an individual with a disability who, with or without reasonable

accommodation, can perform the essential functions of the employment position

that such individual holds or desires.”      Id. § 12111(8). “Disability” means “a

physical or mental impairment that substantially limits one or more of the major

life activities of such individual [or] a record of such an impairment . . . .”        Id.

§ 12102(2). The ADA also covers situations in which the employee may not

actually be disabled, but is perceived to be disabled by the employer.            See id.

§ 12102(2)(C); Sutton v. United Airlines, Inc.       , 119 S. Ct. 2139, 2149-50 (1999).

       Accordingly, to qualify for relief under the ADA, a plaintiff must
       establish (1) that he is a disabled person within the meaning of the
       ADA; (2) that he is qualified, that is, with or without reasonable
       accommodation (which he must describe), he is able to perform the
       essential functions of the job; and (3) that the employer terminated
       him because of his disability.

White, 45 F.3d at 360-61.

       If the plaintiff can make a facial showing that accommodation is possible,

the employer must then show that it is unable to provide accommodation.               See id.

at 361. If the employer makes that showing, the plaintiff must present evidence

of her individual capabilities and provide suggestions for accommodations which



                                              -4-
will rebut the employer’s evidence.       See i d. The question of whether a person has

a disability under the ADA is individualized.       See Sutton , 119 S. Ct. at 2142.

       Although Ms. Butler concluded, after her termination, that she was not

disabled, we look at her situation at the time of her firing. At that time, whether

or not Ms. Butler was actually disabled, her employer perceived her as being

disabled.   1
                Further, at the time she was terminated, Ms. Butler also felt that she

was disabled.

       Ms. Butler alleged she was disabled because she could not perform the

major life activity of working.    2
                                       She asserted that, with the accommodation of a

stool to provide breaks from standing, she could work. Ms. Butler asserted that

her request for a stool was a reasonable accommodation and that defendant

terminated her because it would not accommodate her. Ms. Butler, thus,

established a prima facie case of discrimination under the ADA.

       Defendant, in response, stated that it could not provide Ms. Butler her

requested accommodation. Defendant set forth evidence that all positions in the


1
       Defendant contends that we should not address Ms. Butler’s argument that
she had a record of impairment or was perceived to be impaired by her employer,
as she did not make these arguments to the district court. However, the analysis
of whether a plaintiff has established a prima facie case remains the same whether
the employee actually is disabled or is perceived as disabled. Therefore, we
proceed with our analysis.
2
     We have held that “[w]orking is a major life activity” under the ADA.
Siemon v. AT&T Corp. , 117 F.3d 1173,1176 (10th Cir. 1997) (quotation omitted).

                                              -5-
store required prolonged standing and that it had no permanent light duty

positions.

      Ms. Butler attempted to refute that evidence with conclusory statements.

She asserted, without support, that other stores did provide stools for people

greeters to use. Conclusory statements are unavailing.

      Therefore, we conclude that providing Ms. Butler her requested

accommodation

             is not reasonable because it is tantamount to asking
             [defendant] to provide a permanent light duty post. No
             such permanent assignments exist . . . and the ADA
             does not require an employer to create a new position or
             even modify an essential function of an existing
             position in order to accommodate a disabled worker.

Martin v. Kansas , 190 F.3d 1120, 1133 (10th Cir. 1999);   see also Milton v.

Scrivner, Inc. , 53 F.3d 1118, 1124 (10th Cir. 19 95) (ADA does not limit

employer’s ability to establish functions of job).

      Ms. Butler contends she should not have been required to produce a current

letter from her physician detailing her restrictions. Section 12112(d)(4) explicitly

authorizes an employer to “make inquiries into the ability of an employee to

perform job-related functions” including seeking medical information when that

inquiry is “job-related and consistent with business necessity.” Logically, an

employer cannot attempt to make reasonable accommodation without current

knowledge of the employee’s medical restrictions.

                                          -6-
The judgment of the district court is AFFIRMED.



                                          Entered for the Court



                                          Mary Beck Briscoe
                                          Circuit Judge




                                -7-
