FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                     UNITED STATES COURT OF APPEALSDecember 1, 2011
                                                                 Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                    Clerk of Court



    TIMOTHY J. SMITH,

                Plaintiff-Appellant,
                                                          No. 11-3081
    v.                                          (D.C. No. 6:09-CV-01050-EFM)
                                                           (D. Kan.)
    MORTON INTERNATIONAL, INC.,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before TYMKOVICH, Circuit Judge, BRORBY, Senior Circuit Judge, and
EBEL, Circuit Judge.


         Plaintiff Timothy J. Smith appeals from a district court order granting

summary judgment for his employer, defendant Morton International, Inc.,

(Morton), on his claim of discrimination under the Americans with Disabilities

Act (ADA), 42 U.S.C. §§ 12101-12213. 1 The district court held Smith’s claim

*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
    The ADA was amended, effective January 1, 2009, prior to the grant of
summary judgment here. The district court properly held that the amendments do
                                                                   (continued...)
failed at the prima facie case stage for two distinct reasons: he had not shown

either that he was disabled within the meaning of the ADA or that Morton had

discriminated against him on the basis of his alleged disability. 2 On de novo

review, see Doyal v. Okla. Heart, Inc., 

, 495 (10th Cir. 2000), we

agree that Smith has failed to raise a genuine issue of material fact as to the

existence of his alleged disability, and affirm on this basis without reaching the

analytically subsequent question of discrimination vel non.

      Morton terminated Smith for making comments to co-workers that

assertedly violated the terms of a probationary “Last Chance Agreement” (LCA)

imposed on him after he threatened another employee outside the workplace. An

arbitrator subsequently ordered Smith reinstated, ruling that his comments

amounted to mere “shop talk,” permitted under the arbitrator’s reading of the

LCA. Smith then brought this action, alleging that Morton violated the ADA by

discriminating against him on the basis of a “regarded as” disability, i.e., that


1
 (...continued)
not apply retroactively to the operative events in this case. See Johnson v. Weld
County, 

, 1217 n.7 (10th Cir. 2010); Hennagir v. Utah Dep’t of
Corr., 

, 1261 n.2 (10th Cir. 2009).
2
       “[T]o establish a prima facie case of disability discrimination under the
ADA, a plaintiff must demonstrate that he (1) is a disabled person as defined by
the ADA; (2) is qualified, with or without reasonable accommodation, to perform
the essential functions of the job held or desired; and (3) suffered discrimination
by an employer or prospective employer because of that disability.” EEOC v.
C.R. England, Inc., 

, 1037-38 (10th Cir. 2011) (internal quotation
marks omitted).

                                         -2-
Morton mistakenly regarded him as disabled by a Hepatitis C condition and that

this misapprehension was the true motive for his termination under the LCA. 3 He

posited that Morton deemed his condition a serious health threat to other

employees, impeding his ability to work, and that when the opportunity arose,

Morton accused him of violating the LCA to rid itself of the problem. The

district court found this theory wholly unsupported by the evidence, under

established legal standards governing “regarded as” disabilities. We begin by

summarizing the evidence, particularly as it relates to Morton’s response to

Smith’s condition from the time he first revealed it to the company.

                                  I. Relevant Facts

      The relevant historical facts are largely undisputed. The pretrial order sets

out most of the salient events through the following stipulations:

      2.     Plaintiff was first employed by Defendant at [its salt mine and
             processing] facility in 1998. . . .

      4.     In early 2002, Plaintiff was diagnosed with Hepatitis-C.


3
       The third (discrimination) prong of the ADA prima facie case requires the
plaintiff to “show that he has suffered an adverse employment action because of
the disability.” 

(internal quotation marks omitted).
The parties have not discussed this adverse-action element in connection with the
fact that Smith was reinstated with back pay—perhaps because this court has
held, at least in the Title VII context, that “[a]ctions such as . . . terminations are
by their nature adverse, even if subsequently withdrawn,” Roberts v. Roadway
Express, Inc., 

, 1103, 1104 (10th Cir. 1998) (holding terminated
employee who was “reinstated after intervention by his union” had nevertheless
suffered adverse employment action). In any event, as we rest our disposition on
the first prong of the prima facie case, we need not pursue the point further.

                                          -3-
5.    Defendant granted Plaintiff a six-month leave of absence to
      obtain treatment for his Hepatitis-C. Plaintiff received
      chemotherapy during that leave of absence.

6.    While Plaintiff was off work on his leave of absence, one
      co-worker (Brian Henning) expressed concerns about working
      with Plaintiff, indicating a concern about the communicability
      of the disease/condition.

7.    Company management addressed Mr. Henning and his
      concerns. First, manager Mark Estes told Mr. Henning to stop
      making remarks he was making. Further, Human Resources
      Manager John Cavanaugh distributed information to employees
      to advise them that Hepatitis-C was not communicable through
      casual contact and that no one had anything to fear in working
      with Plaintiff on his return to work. . . .

10.   Plaintiff [returned in late 2002 and] worked for Defendant
      without incident until August 2005 when he was involved in an
      off-site incident with co-worker Jeff Louma. Plaintiff does not
      attribute this incident in any way to his Hepatitis-C diagnosis.

11.   In the August 2005 incident, Plaintiff alleges that Mr. Louma
      “flipped him off” when they passed in traffic in public.
      Plaintiff admits that, in response to this, Plaintiff got out of his
      truck and told Louma “if he kept jacking with me I was going
      to stomp his butt right into the ground.”

12.   [M]anagement suspended both Plaintiff and Louma without
      pay for a period of three weeks.

13.   The labor union . . . challenged both suspensions. With
      respect to Plaintiff, an agreement was reached in October 2006
      to reduce the suspension of Plaintiff from 3 weeks to 3 days,
      provide him the difference in pay for that period, and enter
      into a “last chance agreement.”

14.   Under the “last chance agreement” to which Plaintiff agreed,
      Plaintiff was advised that . . . any aggressive, abusive, hostile
      language of any kind or any behaviors, verbal or non-verbal,
      that would [be] considered threatening, violent, or otherwise in

                                   -4-
             violation of the company’s workplace violence and
             anti-harassment policy would be a violation of the last chance
             agreement [and] . . . if there were further violations of
             company policies or if he engaged in any kind of inappropriate
             conduct as determined by the company, his employment would
             be immediately terminated. . . .

      16.    On January 14, 2007, Plaintiff was involved in an incident in
             the lunchroom.

      17.    Defendant terminated Plaintiff on January 24, 2007, for []his
             conduct [in the January 14 incident], advising Plaintiff that he
             had violated his last chance agreement agreed upon in October
             2006. . . .

      19.    After his termination in January 2007, the labor union
             representing Plaintiff filed a grievance challenging his
             termination. In November 2007, a labor arbitrator reinstated
             Plaintiff with full back pay and benefits, finding that the
             termination was without “just cause.”

Aplt. App. at 27-29.

      As will become evident shortly, certain details of the January 14 incident,

and Morton’s official account of them in the ensuing arbitration proceeding, are

central to Smith’s “regarded as” disability claim. Again, the facts material to our

disposition are not in dispute, as clarified by Morton’s summary judgment motion

and Smith’s response thereto. The incident occurred while Smith was eating

lunch with co-workers Brian Henning and Ray Reese. Work banter led to Smith

saying to Reese “Suck my dick” and then adding “Well, why not? Brian

[Henning] would.” 

¶¶ 21-22 (internal quotaton marks omitted); see 

139, ¶¶ 21-22. Henning informed management about the incident, 4 prompting

an investigation that ultimately led to Smith’s discharge under the LCA.

      Smith challenged his termination, disputing Morton’s claim that his

comments to Reese and Henning violated the terms of the LCA. Smith argued

that other Morton employees, including Henning, had used similar or worse

language, which was simply “shop talk” at the Morton facility. In a passing

argument that Smith has now seized upon for his own purposes here, Morton

attempted to bolster its arbitration position regarding the hostile/threatening

nature of Smith’s comment by asserting that “‘since Tim Smith was Hepatitis C,

that to in effect threaten someone in this particular [i.e., engagement in oral

sexual contact] could be considered a threat to the other employee’s life.’”

(Arbitration decision quoting “a new argument raised in the employer’s

[Morton’s] brief that was not raised at the hearing”). The arbitrator ultimately

agreed with Smith that his comments were neither threatening, violent, nor

sexually harassing, but the sort of coarse “shop talk” broadly tolerated by Morton,

and that, when properly read, the LCA prohibited the former but not the latter.

4
       Henning also claimed the incident went beyond the limited exchange noted
above, with Smith using a microphone to continue to taunt him along the same
lines. Aplt. App. at 61, ¶ 23. Smith has denied this. 

¶ 23. Our
disposition does not require us to delve into this dispute.

                                         -6-
                    II. Analysis of “Regarded As” Disability

      Under the law governing this case, “[a] person is regarded as disabled when

‘(1) a covered entity mistakenly believes that a person has a physical impairment

that substantially limits one or more major life activities, or (2) a covered entity

mistakenly believes that an actual, nonlimiting impairment substantially limits

one or more major life activities.’” Lanman v. Johnson County, 

,

1156 (10th Cir. 2004) (quoting Sutton v. United Air Lines, Inc., 

, 489

(1999)). Smith’s position, that Morton regarded him as disabled on the basis of

his Hepatitis C condition, falls within the second category. It is undisputed that

Smith has Hepatitis C, which he does not claim is actually disabling. He claims,

rather, that Morton mistakenly believed his condition to be disabling, i.e., that it

substantially limited a major life activity–specifically, his ability to work. Smith

asserts Morton deemed him unable to work because it erroneously considered the

contagiousness of his condition a serious threat to co-workers.

      The factual record simply does not support this claim. Morton’s response

to Smith’s diagnosis–affording him leave for treatment and allowing him to return

upon its completion; taking prompt action to defuse employee misconceptions

about exaggerated risks of contagion from Hepatitis C; and maintaining Smith’s

employment for nearly five years following his diagnosis–provides no basis for

inferring that Morton believed his condition rendered him unable to work. The

only reasonable inference is squarely to the contrary.

                                         -7-
      Smith contends, however, that Morton’s litigating position in the arbitration

concerning his discharge under the LCA–specifically its passing argument, noted

above, regarding the particularly threatening nature of his comments during the

January 14 incident–betrayed Morton’s latent mis-perception that his condition

posed a deadly risk to co-workers. And, he continues, such a misunderstanding

would necessarily entail the belief that his condition must render him unfit for

work. Smith’s contention rests on a basic non sequitur.

      The thrust of Morton’s argument was that Smith’s comments about oral

sexual contact implicated a unique threat in light of his condition, which can be

spread by such means. This point might be relevant to the“regarded as” disability

here if Smith’s job entailed oral sexual contact–in which case the risk of infecting

co-workers could impede his ability to work. See Dillon v. Mountain Coal. Co.,

, 1219 (10th Cir. 2009) (noting first prerequisite for “regarded as”

disability based on major life activity of working is that the employer “regarded

[the employee] as significantly restricted in performing his specific job because of

an impairment” (emphasis added)). But obviously it did not. Thus, the argument

Morton made to the arbitrator does not support Smith’s disability claim. 5




5
       The district court held that the terms of Morton’s argument to the arbitrator
were inadmissible in this case on grounds that were vigorously disputed by Smith.
As we conclude the argument does not support Smith’s disability claim in any
event, we need not reach issues concerning its admissibility.

                                         -8-
      We conclude that Smith failed to create a genuine issue of material fact on

the threshold requirement of a disability. In light of that legal deficiency, the

entry of summary judgment on his ADA claim was correct.

      The judgment of the district court is AFFIRMED.


                                                     Entered for the Court



                                                     David M. Ebel
                                                     Circuit Judge




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