F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         DEC 19 2000
                               TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk


ROBERT J. MERRELL,

             Plaintiff-Appellant,
                                                        No. 99-4173
v.                                                   (District of Utah)
                                                  (D.C. No. 98-CV-229-K)
ICEE-USA CORPORATION,

             Defendant-Appellee.




                          ORDER AND JUDGMENT *


Before MURPHY, ANDERSON, Circuit Judges, and KANE, ** District Judge.


I. INTRODUCTION

      Plaintiff Robert J. Merrell injured his back while employed by ICEE-USA,

Inc. (“ICEE”). Merrell filed suit against ICEE under the Americans with

Disabilities Act (“ADA”), claiming ICEE failed to accommodate him in his job.



      *
       This order and judgment is not binding precedent, except under the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.
      **
        Honorable John L. Kane, Jr., Sr. District Judge, United States District
Court for the District of Colorado, sitting by designation.
The district court granted ICEE summary judgment, holding Merrell failed to

establish that he was able to perform the essential functions of his position with

or without reasonable accommodation. This court exercises jurisdiction pursuant

to 28 U.S.C. § 1291 and affirms.

II. BACKGROUND

      ICEE supplies and services carbonated beverage machinery. In 1985,

Merrell began working for ICEE in its Salt Lake City distribution facility, which

services parts of Utah, Idaho, and Wyoming. Merrell began his employment with

ICEE as a combination route delivery person and service technician. From 1986

until 1991, he managed the three-state service area. In 1991, Merrell was

demoted to service technician. In June 1996, Merrell was promoted to service

representative, a position he held until he left ICEE. As service representative,

Merrell managed the service area, delegated work responsibilities, installed and

repaired equipment, and engaged in other administrative tasks such as ordering

and receiving. During Merrell’s tenure as service representative, he continued to

maintain equipment and service accounts in the three-state service area.

      In March or April 1993, while making a delivery in Idaho, Merrell injured

his back lifting the rear door of his ICEE truck. He continued to work and did not

seek medical treatment until 1995. Merrell’s doctor determined that Merrell had a




                                         -2-
herniated disk in his lower back and restricted him to lifting a maximum of forty

pounds with no repetitive bending, stooping, or squatting.

      On July 17, 1996, Merrell submitted a written report of his injury with

ICEE. ICEE filed its first injury report on Merrell’s accident on August 8, 1996.

Later that month, Merrell notified ICEE of the restrictions placed on him by his

physician.

      On October 24, 1996, Merrell refused to make a service call to Idaho due to

extreme back pain. Merrell informed his supervisor, Richard Borland, that he

could not work that day and that he needed to see a doctor. Merrell remained

under the care of a doctor throughout the calendar year. By January 1997, a

physical therapist recommended that the maximum weight Merrell lift be reduced

from forty to thirty-five pounds.

      At the end of December 1996, Merrell requested information on “limited

duty work” availability and accommodation with his position at the Salt Lake City

facility. On January 8, 1997, ICEE offered Merrell a temporary position in

Ontario, California, which Merrell rejected. In February, Merrell again requested

work accommodation for his Salt Lake City position.

      Merrell sent a formal letter of resignation to ICEE in June 1997. In March

1998, Merrell filed an action against ICEE in federal district court, alleging that

ICEE violated the ADA by failing to accommodate him in his job.


                                         -3-
      In February 1999, ICEE moved for summary judgment. The district court

ruled in favor of ICEE, holding that Merrell was unable to establish that he is

qualified and able to perform the essential functions of his job with or without

reasonable accommodations. Merrell raises three issues on appeal. First, he

argues the district court erred in granting ICEE summary judgment because there

was evidence showing the essential functions of Merrell’s position were disputed

and there was evidence presented that he could perform the essential functions

with or without accommodation. Second, Merrell argues the district court erred

by granting summary judgment because evidence revealed that ICEE denied his

1994 request for a leave of absence to seek medical treatment and to recover.

Third, Merrell argues the district court erred by granting summary judgment

because a reasonable fact finder could conclude that ICEE’s participation in the

interactive process was not in good faith.

III. DISCUSSION

      The district court’s grant of summary judgment is reviewed de novo. See

Bullington v. United Air Lines, Inc., 

, 1313 (10th Cir. 1999). This

court examines the record to determine if there is a genuine issue of material fact

in dispute, viewing the facts and inferences drawn therefrom in the light most

favorable to the nonmoving party. See 

is proper if no




                                         -4-
reasonable jury could return a verdict for the nonmoving party based on the

admissible evidence. See 

prima facie case under the ADA requires Merrell to show: 1)

he is disabled under the meaning of the ADA; 2) he is qualified to perform the

essential functions of his job, with or without reasonable accommodation; and 3)

ICEE terminated him under circumstances giving rise to an inference of

disability-based discrimination. See Hardy v. S.F. Phosphates Ltd., 

, 1079 n.2 (10th Cir. 1999).

      The only element of the prima facie case at issue on appeal is whether

Merrell is qualified to perform the essential functions of the service

representative job. In reviewing the district court’s grant of summary judgment,

this court must determine whether genuine issues of material fact exist as to

whether Merrell could perform the essential functions of the service

representative position with or without reasonable accommodation.

      Assuming, without deciding, that Merrell qualifies as “disabled” under the

ADA, this court must apply a two-part test to determine whether he is a qualified

individual under the ADA for the purposes of the service representative position.

See Hudson v. MCI Telecomm. Corp., 

, 1168 (10th Cir. 1996). First,

this court must determine whether Merrell could perform the essential functions

of the service representative job. See 

this court concludes Merrell


                                         -5-
cannot perform the essential functions of the job, we must determine whether a

reasonable accommodation by ICEE would enable him to perform the functions.

See 

ICEE’s motion for summary judgment, the district court

determined that Merrell failed to establish that he is qualified and able to perform

the essential functions of his position. The district court found that Merrell’s job

consisted of delivering products, installing machinery, and maintaining

equipment, most of which weighed more than forty pounds. Further, the district

court found that the only accommodation which would enable Merrell to perform

his job would require a second employee to ride with him in order to do the

lifting. Thus, the district court determined there were no reasonable

accommodations for Merrell’s position at the Salt Lake City facility. This court

agrees with the district court.

      Merrell’s responsibilities as service representative include servicing

accounts and maintaining equipment. Servicing an account requires lifting ICEE

products, many of which weigh more than Merrell’s physician-imposed lifting

limit. Maintaining equipment includes changing a compressor, which weighs

seventy pounds. Notably, this is the activity Merrell could not undertake the day

he was unable to work in October 1996. Further, Merrell’s own physical therapist




                                         -6-
described Merrell’s work as including heavy lifting and frequent sitting, bending,

and stooping.

      In his brief, Merrell claims the reason he was engaging in heavy lifting in

his position as service manager is because ICEE intentionally understaffed the

Salt Lake City facility. He argues the intentional understaffing required him to

perform activities that were not essential functions of his position, such as

delivering products and servicing accounts, both of which require frequent heavy

lifting. The admissible evidence offered by Merrell, however, does not create a

material issue of fact on the understaffing question.

      Merrell relies specifically on two pieces of evidence in support of his

understaffing claim. He relies on a document titled “Alerts and Tasks Logs,”

which allegedly lists the Salt Lake City ICEE employees from December 1996 to

November 1997 by company identification number. This evidence, however, is

wholly lacking in foundation.

      Merrell also relies on his affidavit in which he suggests that ICEE

intentionally understaffed the Salt Lake City facility. Merrell’s own deposition,

however, in which he acknowledged Borland was trying to hire a route delivery

person during Merrell’s tenure as service representative, contradicts the




                                         -7-
subsequent affidavit. 1 This court must disregard an affidavit that contradicts

earlier sworn testimony if it constitutes an attempt to create a sham issue of fact.

See Kendrick v. Penske Transp. Servs., Inc., 

, 1224 n.2 (10th Cir.

2000). Merrell’s affidavit does just that. Thus, this court must disregard the

later, contradictory statement in his affidavit.

      Merrell has not created a genuine issue of material fact as to the essential

functions of the service representative position. Because of the restrictions

placed upon him by his physician, this court concludes Merrell is not capable of

performing the essential functions of his position.

      This court must determine next whether a reasonable accommodation would

enable Merrell to perform the essential functions of his service representative

position. In his opening brief, Merrell asks this court to examine two separate

periods of time to determine whether ICEE could have reasonably accommodated

him: the time covering Merrell’s tenure as service representative and the time in

1994 when he allegedly requested a leave of absence from work to seek medical

treatment. In his reply brief, Merrell argues that this court should also look at the

entire period of time from 1995 through October 1996. An issue raised for the


      1
        In his reply brief, Merrell argues ICEE waived its right to challenge the
contradictory affidavit because it did not object to it in district court. While not
raising a formal objection to the affidavit, ICEE’s reply memorandum in support
of its motion for summary judgment specifically points out the contradiction in
Merrell’s deposition and affidavit regarding ICEE’s alleged understaffing.

                                          -8-
first time in a reply brief, however, is waived. See Boone v. Carlsbad

Bancorporation, Inc., 

, 1554 n.6 (10th Cir. 1992). Although

Merrell makes one comment in his opening brief in which he indicates that he was

denied accommodations throughout this entire period, he fails to provide proper

legal or factual support for his claim. See United States v. Callwood, 

, 1115 n.6 (10th Cir. 1995) (“A litigant who mentions a point in passing but

fails to press it by supporting it with pertinent authority forfeits the point.”

(quotation omitted)). Thus, this court will not review the alleged failure of ICEE

to accommodate Merrell during the entire time period.

      This court can quickly dispose of Merrell’s claim that ICEE denied his

1994 request for leave to seek medical treatment. In his deposition, Merrell

reveals that he did not ask for time off work until at least 1995. In his subsequent

affidavit, however, he claims he requested time off in 1994. In accordance with

Kendrick, this court disregards the inconsistent affidavit statements. 

n.2. Accordingly, no genuine issue of material fact exists as to this claim.

      Merrell concedes that the service representative position requires

occasional heavy lifting, but he maintains that reasonable accommodation would

allow him to perform his job. Merrell argues that ICEE should have

accommodated him in three significant ways.




                                          -9-
       First, Merrell claims ICEE should have given him time off to see a doctor

after he experienced severe back pain in October 1996. Because Merrell does not

provide sufficient evidence to raise a genuine issue of material fact about whether

ICEE fired him in October 1996, the months following Merrell’s last day of work

must be viewed as a leave of absence. Moreover, correspondence between ICEE

and Merrell from October 1996 through February 1997 strongly indicates that

both parties believed Merrell was on a leave of absence beginning on October 24,

1996. Accordingly, Merrell has not shown that ICEE failed to accommodate him

by refusing his request for time off in October 1996.

       Second, Merrell claims ICEE should have filled the vacant service

technician position, thereby allowing him to perform only the essential functions

of his job as service representative, which require only occasional lifting. This

claim presumes without any substantiation, however, that Merrell’s essential job

functions would have changed as a result of hiring another employee. Thus,

Merrell has failed to raise a genuine issue of material fact as to this claim. See

Anderson v. Liberty Lobby, Inc., 

, 256 (1986) (“[A] party opposing a

properly supported motion for summary judgment may not rest upon mere

allegation..., but must set forth specific facts showing that there is a genuine issue

for trial.”)




                                         -10-
      Third, Merrell claims ICEE should have provided him with assistance in the

occasional heavy lifting required of his position. Because this court concludes

that Merrell’s service representative position requires heavy lifting, the only

accommodation that would enable him to perform his job would require another

employee to accompany him on most servicing calls. Contrary to Merrell’s

assertion, this is an unreasonable accommodation as a matter of law because it

creates an undue burden on ICEE. See Taylor v. Pepsi-Cola Co., 

,

1110 (10th Cir. 1999).

      At oral argument, Merrell indicated he only needed temporary assistance

with lifting until his back healed. This is consistent, however, with ICEE’s offer

of temporary employment in Ontario, California, which Merrell rejected. It was

not possible for ICEE to accommodate Merrell at its Salt Lake City facility

without imposing an undue burden on it, especially in light of the doctor’s long-

term, if not permanent, limitations placed upon Merrell.

      This court agrees with the district court that there were no reasonable

accommodations for Merrell at ICEE’s Salt Lake City facility. Because Merrell

cannot show that a reasonable accommodation was possible, this court does not

need to examine whether ICEE acted in good faith in the interactive process. See

generally Smith v. Midland Brake, Inc., 

, 1174 (10th Cir. 1999) (en

banc) (discussing interactive process).


                                          -11-
IV. CONCLUSION

      This court concludes no reasonable jury could return a verdict for Merrell

based on the admissible evidence. Thus, the district court’s grant of summary

judgment in favor of ICEE is AFFIRMED.

                                      ENTERED FOR THE COURT



                                      Michael R. Murphy
                                      Circuit Judge




                                       -12-