F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 23 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

    EUGENE MONTOYA,

                Plaintiff-Appellant,

    v.                                                    No. 99-2126
                                                (D.C. No. CIV-97-1621-BB/DJS)
    STATE OF NEW MEXICO,                                   (D. N.M.)

                Defendant-Appellee.


                             ORDER AND JUDGMENT           *




Before BRORBY , PORFILIO , and LUCERO , Circuit Judges.




         Plaintiff Eugene Montoya appeals from the district court’s dismissal of his

case on summary judgment.     1
                                  Mr. Montoya filed this claim under the Americans

with Disabilities Act (ADA), 42 U.S.C. §§ 12101 to 12213, against his former


*
      This order and judgment is not binding precedent, except under the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.
1
      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.
employer the Museum of Natural History and Science, Office of Cultural Affairs,

State of New Mexico, alleging that it discriminated against him by discharging

him, failing to reasonably accommodate his disability, and denying him

employment opportunities. We have jurisdiction pursuant to 28 U.S.C. § 1291

and affirm.

      Mr. Montoya was employed with defendant for approximately twelve years.

At the time of his termination, he was a custodian supervisor. During the last

year or so of his employment, Mr. Montoya had a number of emotional outbursts,

which included his use of abusive, foul language toward other employees. In

addition to these outbursts, Mr. Montoya was frequently late for work, and failed

to adhere to defendant’s sick leave call in policy. As a result, Mr. Montoya was

subject to progressive disciplinary action which culminated in his termination on

January 7, 1997. Mr. Montoya appealed his dismissal to the State Personnel

Board which held a hearing in June 1997. Thereafter, the hearing officer issued a

written decision, finding that he had been dismissed for just cause. At the hearing

a medical expert, Dr. Bobby Holstead, a Veterans Administration (V.A.)

psychiatrist and psychologist, testified that Mr. Montoya had been diagnosed with

major depression and posttraumatic stress disorder (PTSD) in 1995, that he was

being treated at the V.A. hospital for these conditions, and that his treatment

included medication.


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       After the EEOC issued him a right to sue letter, Mr. Montoya commenced

this action against defendant. Mr. Montoya’s complaint alleges that he is disabled

pursuant to § 12102 of the ADA, based on his major depression and PTSD in that

“during all relevant times he has had a mental impairment that substantially limits

one or more of his major life activities, and/or had a record of such impairment,

and/or was regarded as having such an impairment.” Appellant’s App. at 7

(complaint). His complaint also alleges defendant was aware of his disability

through its supervisory employees; in particular, his supervisors knew he was on

medication, that he was depressed, and that he was seeing a therapist at the V.A.

hospital. See 

       In granting defendant’s summary judgment motion, the district court held

that Mr. Montoya did not inform defendant of his disability and his need for

reasonable accommodation as required under the ADA. On appeal, Mr. Montoya

contends the district court erred because defendant knew of his disability before

he was discharged and was therefore obligated to provide him with a reasonable

accommodation.

       We review de novo the district court’s decision granting summary judgment

and apply the same legal standards as the district court.   See Bullington v. United

Air Lines, Inc. , 

, 1313 (10th Cir. 1999). Summary judgment is

appropriate on a record demonstrating that “there is no genuine issue as to any


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material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). As always, “we view the factual record and

inferences therefrom in the light most favorable to the nonmoving party.”

Bullington , 186 F.3d at 1313.

       Once the moving party meets its “initial burden to show that there is an

absence of evidence to support the nonmoving party’s case,”         Thomas v. IBM ,

, 484 (10th Cir. 1995) (quotation omitted      ), it is the nonmoving party’s

burden to “identify specific facts that show the existence of a genuine issue of

material fact.”   

opposing the motion must present sufficient

evidence in specific, factual form for a jury to return a verdict in that party’s

favor.” 

       The ADA prohibits employers from discriminating “against a qualified

individual with a disability because of the disability of such individual.”

42 U.S.C. § 12112(a). In order to make a prima facie case under the ADA,

Mr. Montoya must show: (1) a disability as that term is understood under the

ADA; (2) that he is qualified with or without reasonable accommodations; and

(3) the employer discriminated against him on the basis of that disability.     See

Sorensen v. University of Utah Hosp.     , 

, 1086 (10th Cir. 1999).

Mental impairments are included within the ADA’s definition of disability, so

long as that impairment “substantially limits one or more of the major life


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activities” of the impaired individual. 42 U.S.C. § 12102(2)(A). Defendant does

not contest for purposes of summary judgment that plaintiff has a disability and

that he is a qualified individual.

       One of the ways an employer can discriminate against an individual under

the ADA is by failing to make “reasonable accommodations to the known physical

or mental limitations of an otherwise qualified individual with a disability who is

an applicant or employee, unless [the employer] can demonstrate that the

accommodation would impose an undue hardship.” 42 U.S.C. § 12112(b)(5)(A).

An employer is not expected to accommodate disabilities of which it is unaware

and, “[i]n general, [ ] it is the responsibility of the individual with a disability to

inform the employer that an accommodation is needed.” 29 C.F.R. Pt. 1630, App.

§ 1630.9 at 361 (1999). Once the employee requests an accommodation, however,

“the employer must make a reasonable effort to determine the appropriate

accommodation.”      

effort entails an interactive, flexible

process of determining the appropriate accommodation.        See 

interactive [reasonable accommodation] process must ordinarily begin with the

employee providing notice to the employer of the employee’s disability and any

resulting limitations.”   Smith v. Midland Brake, Inc. , 

, 1171 (10th

Cir. 1999) (en banc).




                                           -5-
       The Third Circuit has held that, in order to show an employer has failed to

participate in the interactive reasonable accommodation process, the employee

must demonstrate:

       1) the employer knew about the employee’s disability; 2) the
       employee requested accommodations or assistance for his or her
       disability; 3) the employer did not make a good faith effort to assist
       the employee in seeking accommodations; and 4) the employee could
       have been reasonably accommodated but for the employer’s lack of
       good faith.

Taylor v. Phoenixville Sch. Dist.    , 

, 319-20 (3d Cir. 1999) (en banc);

see also Fjellestad v. Pizza Hut of Am., Inc.      , 

, 952 (8th Cir. 1999)

(applying the Third Circuit’s factors set out in     Taylor ). For purpose of our

analysis under these facts, we agree with the Third Circuit and use its approach.

Hence, our resolution of this appeal turns on whether defendant had sufficient

knowledge of Mr. Montoya’s disability and whether Mr. Montoya requested

reasonable accommodation, thereby triggering defendant’s responsibility to

engage in the interactive process outlined above.

       On the record before us, and based on our review of the law and the

parties’ submissions, we agree with the district court’s finding that Mr. Montoya

did not meet his burden to show that defendant knew of his disability and its

ensuing limitations, nor did he meet his burden to show that he requested

reasonable accommodation. Although his complaint alleges notice to the

employer, the factual record made in opposition to the motion for summary

                                             -6-
judgment fails to reveal notice. Hence, we find no triable issues of fact

concerning defendant’s obligation to engage in the interactive reasonable

accommodation process; under these circumstances defendant’s obligations under

the ADA were not triggered. Accordingly, we affirm the district court’s grant of

summary judgment for substantially the same reasons set forth in that court’s

thorough memorandum and order dated March 24, 1999.

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

Mexico is AFFIRMED.

                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




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