F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 4 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    DONALD McVARISH,

                Plaintiff-Appellant,

    v.                                                   No. 98-6284
                                                     (D.C. No. 96-CV-844)
    NEW HORIZONS COMMUNITY                               (W.D. Okla.)
    COUNSELING AND MENTAL
    HEALTH SERVICES INC.,
    a corporation,

                Defendant-Appellee.




                            ORDER AND JUDGMENT           *




Before TACHA , BARRETT , and MURPHY , 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




*
      This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

       Plaintiff-appellant Donald McVarish appeals from summary judgment

granted in favor of defendant-appellee New Horizons Community Counseling and

Mental Health Services, Inc. on his claims brought pursuant to Title I of the

Americans with Disabilities Act, 42 U.S.C. §§ 12101-17 (“ADA”), and from a

later summary judgment granted in favor of defendant on his claims brought

under the Family Medical Leave Act, 29 U.S.C. §§ 2601-54 (“FMLA”). Our

jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

       We review both grants of summary judgment          de novo , applying the same

standard employed by the district court under Rule 56(c) of the Federal Rules of

Civil Procedure.   See Riley v. Brown & Root, Inc. , 

, 476 (10th Cir.

1990). “We must consider factual inferences tending to show triable issues in the

light most favorable to the existence of those issues.”     

ADA claims

       To state a prima facie case under the ADA, plaintiff must exhibit that

(1) he suffers from a “disability” as defined by the statute; (2) he is a “qualified

individual,” i.e., that he is able to perform the essential functions of the job, with

or without reasonable accommodation; and (3) he suffered an adverse employment



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action because of the disability.   See Morgan v. Hilti, Inc. , 

, 1323

(10th Cir. 1997). The ADA defines “disability” as

       (A) a physical or mental impairment that substantially limits one or
       more of the major life activities of such individual; [or]

       ....

       (C) being regarded as having such an impairment.

42 U.S.C. § 12102(2). “Major life activities” is defined as “functions such as . . .

working.” 29 C.F.R. § 1630.2(i). With respect to working,

       [t]he term “substantially limits” means significantly restricted in the
       ability to perform either a class of jobs or a broad range of jobs in
       various classes as compared to the average person having comparable
       training, skills and abilities. The inability to perform a single,
       particular job does not constitute a substantial limitation in the major
       life activity of working.

29 C.F.R. § 1630.2(j)(3)(i).

       The key question presented on appeal is whether in October 1994 plaintiff

was “disabled” such that he was protected by the ADA. In his deposition,

plaintiff stated that his disabilities were a “chronic heart condition,” strokes that

occurred in February 1995 and January 1996, and a perception by his supervisor

that he had a mental impairment in June 1995. Appellant’s App., McVarish Dep.

at 7. It is undisputed that plaintiff suffered a heart attack in 1984 but returned to

work and worked without any significant problem until July of 1994, when one of

his coworkers, Mahala Ellington, was made his supervisor. He demanded her


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removal as his supervisor in October of 1994 as a “reasonable accommodation”

under the ADA, stating that he suffered stress under her supervision. He claims

that denial of this “accommodation” was an adverse employment action in

violation of the ADA. Plaintiff’s brief lists other adverse employment actions as

(1) a threatened termination for plaintiff’s absence from a scheduled meeting in

October 1994; (2) Ms. Ellington’s alleged characterization of him as mentally ill

in June 1995; (3) a negative evaluation; and (4) bypassing him in 1995 in

decisions that had been part of plaintiff’s job description.   See Appellant’s Br.

at 12-13.

       Plaintiff testified that, at the time he demanded Ms. Ellington’s removal as

his supervisor, “[g]oing to work [was] not a problem. Going to work and

contacting Mahala on a daily basis and talking with her about her perceptions of

my job and that kind of thing made it difficult for me.” Appellant’s App.,

McVarish Dep. at 47. He testified that defendant did not take any adverse action

against him because of his physical impairments except for failing to remove

Ms. Ellington as his supervisor.     See 

It is undisputed that in October

1994 defendant suggested that plaintiff take twelve paid weeks off to attend a

stress management program that defendant would pay for under its EAP program.

Plaintiff refused this suggestion. Ms. Ellington was replaced by another person as




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plaintiff’s supervisor in October 1995, and plaintiff was placed on permanent

disability in 1996 after his second stroke.

       Plaintiff’s claim that defendant perceived that he had a mental impairment

such that he was a “qualified individual with a disability”as defined by the ADA

is based upon the fact that in June 1995 Ms. Ellington asked a psychiatrist who

worked at New Horizons for advice on how to negotiate with plaintiff and asked

whether the psychiatrist thought that plaintiff, who was very angry, presented a

danger to himself or to others at that time.         See Appellant’s Br. at 8-9 & Ex. 2-4.

       We have carefully reviewed the record presented to the district court. For

the reasons stated in the court’s memorandum opinion, we agree that, as a matter

of law, plaintiff has failed to demonstrate that in October 1994 he was a

“disabled” individual within the meaning of the ADA.             See Mem. Op. filed

Oct. 29, 1997 at 5-8; cf. Siemon v. AT&T Corp. , 

, 1176 (10th Cir.

1997) (holding that plaintiff suffering from mental impairment preventing him

from working under a few supervisors was not disabled under the ADA). He also

failed to demonstrate that defendant regarded him as having a mental impairment

that substantially limited his ability to work. As the district court noted,

       Plaintiff has presented no evidence that Defendant changed
       Plaintiff’s job duties or took any other adverse employment action
       based on a perception that he suffered a mental disability.




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Mem. Op. filed Oct. 29, 1997, at 8. Because plaintiff failed as a matter of law to

establish that in 1994 he was an individual with a disability as defined under the

statute, summary judgment was properly granted.       See Siemon , 117 F.3d at 1175

(stating that if plaintiff suffers no “disability” as defined by the statute,

employer’s behavior is not actionable under the ADA).


                                 II. The FMLA claims

          The memorandum opinion issued by the district court on June 5, 1998,

fully sets out plaintiff’s assertions and presents a thorough analysis and

application of the relevant law. This court has reviewed the record, and, for the

reasons stated in the district court’s memorandum opinion, is convinced that the

court properly granted summary judgment to defendant on plaintiff’s FMLA

claims.

      The judgment of the United States District Court for the Western District

of Oklahoma is AFFIRMED .



                                                       Entered for the Court



                                                       Deanell Reece Tacha
                                                       Circuit Judge




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