                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                     December 13, 2007
                            FOR THE TENTH CIRCUIT
                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court


    CHARLES WILSON,

                Plaintiff-Appellant,

    v.                                                    No. 06-3421
                                                  (D.C. No. 05-CV-1154-DWB)
    COMFORT SYSTEMS, a division of                          (D. Kan.)
    Waldinger Corporation,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, PORFILIO, and ANDERSON, Circuit Judges.



         Plaintiff, Charles Wilson, filed this lawsuit against his former employer,

Comfort Systems, alleging discriminatory termination under the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12101. The district court granted Comfort

Systems’ motion for summary judgment, concluding that Mr. Wilson failed to



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
demonstrate that he is disabled within the meaning of the ADA or that he was

terminated because of his alleged disability. Exercising our jurisdiction under

28 U.S.C. § 1291, we affirm.

                               I. Appellate Jurisdiction

      Before addressing the merits we must resolve the jurisdictional issue raised

by Mr. Wilson’s untimely notice of appeal. As we explained in our partial

remand order of January 5, 2007, Mr. Wilson missed the thirty-day deadline for

filing a notice of appeal in this action by two days. He acknowledged his

tardiness, however, explaining that he had been “out of town relocating his sister

for [a] lung transplant.” R. doc. 73. We construed Mr. Wilson’s filing as a

request for an extension of time to file his notice of appeal, which was timely

under Fed. R. App. P. 4(a)(5). Accordingly, we remanded the case to the district

court for the limited purpose of ruling on that request.

      On May 28, 2007, the district court issued an order granting Mr. Wilson the

extension, finding that his “stated reason for the delay, which was not within his

reasonable control, weigh[ed] in favor of finding [] excusable neglect.” R. doc.

84 at 4. It also found that Mr. Wilson acted in good faith, that the length of the

delay was minimal, and that any prejudice to Comfort Systems was negligible.

On the record before us, we conclude the district court acted well within its

discretion in granting Mr. Wilson the extension. See City of Chanute v. Williams

Natural Gas Co., 31 F.3d 1041, 1045 (10th Cir. 1994) (“We review the district

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court’s determination of ‘excusable neglect’ with respect to a Rule 4(a)(5) motion

only for an abuse of discretion”). We therefore have jurisdiction over this appeal.

                                  II. Background

A. Facts

      Comfort Systems installs and services heating, air conditioning, and

plumbing systems for residential and commercial customers in Wichita, Kansas

and the surrounding area. Mr. Wilson began working for Comfort Systems as a

service technician in March 2003. It is undisputed that during his employment he

was able to perform all of the functions of his job without any accommodations.

It is also undisputed that Mr. Wilson never told anyone at Comfort Systems that

he had been receiving disability benefits from the Social Security Administration

(“SSA”) since 1997 because of arthritis in his knees. In December 2003 the SSA

sent Comfort Systems a questionnaire seeking information about Mr. Wilson’s

employment. The stated purpose of the questionnaire was to determine whether

Mr. Wilson’s employment could be considered as subsidized or an unsuccessful

work attempt under the Social Security guidelines. The form did not mention the

nature of Mr. Wilson’s disability, and it was not apparent from the information

disclosed therein that Mr. Wilson suffered from any knee problems. Larry Dunn,

Mr. Wilson’s manager, completed the form on behalf of Comfort Systems. He

indicated that Mr. Wilson did not work under any special conditions, such as

receiving extra help or frequent rest periods, and that his work was satisfactory.

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      Comfort Systems terminated Mr. Wilson’s employment in January 2004,

stating that he was being laid off due to a slow-down in business. Mr. Dunn

indicated on the termination form that Mr. Wilson was eligible for rehire. He also

offered to call around town to see if other companies in the business might be

interested in hiring Mr. Wilson. Mr. Wilson, however, was unable to find

employment, and later in 2004, he underwent knee surgery that prevented him

from working. He had surgery on his other knee in 2005. He filed this action on

May 20, 2005, charging Comfort Systems with discriminatory termination under

the ADA.

B. Summary Judgment Order

      By order dated October 26, 2006, the district court awarded summary

judgment to Comfort Systems. It noted initially that although Mr. Wilson’s pro

se response to the defendant’s motion ignored virtually all of the procedural rules

governing summary judgment, the court was nonetheless obligated to determine

whether Comfort Systems was entitled to judgment as a matter of law. It then

proceeded to address the legal and evidentiary bases underlying Comfort Systems’

argument.

      First, the court explained that in order to survive summary judgment, an

ADA plaintiff must establish a prima facie case of disability discrimination by

showing (1) that he is disabled within the meaning of the ADA; (2) that he is a

“qualified individual,” meaning that he can perform the essential functions of the

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job with or without an accommodation; and (3) that the employer terminated him

because of his disability. R. doc. 71 at 12; see Morgan v. Hilti Inc., 108 F.3d

1319, 1323 (10th Cir. 1997) (setting forth elements of ADA claim). The court

then emphasized that it is critical for the plaintiff to establish that he is disabled

within the meaning of the ADA, even if he has been adjudged disabled by the

SSA. R. doc. 71 at 14 (citing Griffith v. Wal-Mart Stores, Inc., 135 F.3d 376, 383

(6th Cir. 1998); Weigel v. Target Stores, 122 F.3d 461, 468 (7th Cir. 1997)). The

court went on to hold that Mr. Wilson failed to show that he was disabled as

defined in the ADA, see 42 U.S.C. § 12102(2), because there was no evidence

that he suffered from any substantial limitations in any major life activities,

including work. To the contrary, all of the evidence indicated that Mr. Wilson

was able to perform all of the functions of his job at Comfort Systems with no

accommodations. The court also held that Mr. Wilson could not establish

disability with a record of impairment because there was nothing in the record to

indicate that Comfort Systems was aware of any such record. Accordingly, the

court found that Mr. Wilson failed to establish a prima facie case.

      Nonetheless, the court went on to conclude that even if Mr. Wilson had

established a prima facie case of discrimination, Comfort Systems would be

entitled to summary judgment because there was no admissible evidence showing

that it knew about Mr. Wilson’s alleged disability. And thus, there was no

evidence to support Mr. Wilson’s conclusory allegation that he was fired because

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of his disability. The court also rejected Mr. Wilson’s pretext argument.

Although the evidence supported his contention that Comfort systems hired two

employees within weeks of his termination, the court noted that there was no

evidence to indicate that those employees were hired as service technicians.

      This appeal followed.

                                   III. Discussion

      “We review the grant of a summary judgment motion de novo, applying the

same standards as the district court. In reviewing the record, we view all

evidence and draw reasonable inferences therefrom in the light most favorable to

the nonmoving party.” Proctor v. UPS, 502 F.3d 1200, 1205 (10th Cir. 2007)

(citation omitted). Summary judgment is appropriate if the record demonstrates

that there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c). After carefully considering

Mr. Wilson’s arguments and the record on appeal, we agree with the district

court’s conclusion that Comfort Systems was entitled to judgment as a matter of

law. We therefore AFFIRM the district court’s judgment for substantially the

same reasons set forth in its October 26, 2006, order granting Comfort Systems’

motion for summary judgment.


                                                     Entered for the Court

                                                     Stephen H. Anderson
                                                     Circuit Judge

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