Opposition Brief — Gutridge v. Midland Computer, Inc.

Supreme Court, U.S.

oe eo, Fy

APR 12

No. 98-1459 lis

CLERK

In The

Supreme Court of the United States

October Term, 1998

*

GAVIN GUTRIDGE,

Petitioner,

VS.

MIDLAND COMPUTER, INC., d/b/a

COMPUTERLAND OF NEBRASKA, a/k/a

COMPUTERLAND; and WAYNE CLURE as

President of ComputerLand, Individually,

Respondents.

s

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

*

RESPONDENTS’ BRIEF IN OPPOSITION

¢

Jerr C. MILLER

Counsel of Record

DuNcAN A. YOUNG

YounGc & WHITE

8742 Frederick Street

P.O. Box 241358

Omaha, NE 68124-5358

(402) 393-5600

Attorneys for Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

CADRE ASE BALERS cio ca es Cee ee ii

STATUTES AND REGULATIONS INVOLVED ...... 1

DLALMMRIEE AIP BEM GOR. Cocos eco lacs dete coke 1

5. Senet TOE Tee Parts ©... yes hy te ctwewcs: 2

2. The Petition Misrepresents The Decision Of

The United States District Court For The Dis-

SEUCE AID POMOROR oo via be node g ee Gea css oa 8

3. The Petition Misrepresents The Decision Of

The United States Court Of Appeals For The

RT NAOMI Sohn PEIN DIS Gee oe ek Ck 9

REASONS FOR DENYING THE WRIT............. 10

1. The Decisions Below Resolved All Arguments

PRIS TOR: APO ede nes cv ok eee eke 10

2. The Decisions Below Properly Interpreted And

Applied The Americans With Disabilities Act... 10

3. There Are No Conflicting Decisions.......... 22

4. The Decisions Below Are Supported On Other

PINE wre kng o4 65s ara con peter ce kiees Fe.

Je RS. Se MNT GUC Se ea tnr la Ca 30

il

TABLE OF AUTHORITIES

Page

CASEs:

Aldrich v. Boeing Co., 146 F.3d 1265

(ROG CA FPSB Cees eee cee ee cee 22, 24, 25

Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d

S343: (6Gh Cap. 1996). occ ews i oe ee ace a 15

Burch v. Coca-Cola Co., 119 F.3d 305 (5th Cir. 1997) .... 23

Colwell v. Suffolk County Police Dep’t, 158 F.3d 635

(20. Che, 1906) isco ciencceaaeheanetewale se 20, 23

Demming v. Housing and Redevelopment Auth. of

Duiuth, 66 F.3d: 950 (Oth fan TPG) oss xkcd aes 23

Gerdes v. Swift-Eckrich, Inc., 125 F.3d 634 (8th Cir.

LOST Fins 0's wy 95a VEO Peal en Waa y ene eee eed 16

Halperin v. Abacus Technology Corp., 128 F.3d 191

CRG Aha. 2997) oss baw es tee ecuec seeders 1 wee 16, 20

Heintzelman v. Runyon, 120 F.3d 143 (8th Cir. 1997) .... 20

Helfter v. United Parcel Serv., Inc., 115 F.3d 613 (8th

Rt F997) ois eee bi ecck ae eeee eae ei aa ee 15

Land v. Baptist Medical Ctr., 164 F.3d 423 (8th Cir.

AFRO) i aca ob e55 3 89.9 We aw kA a 20

Lenhardt v. Basic Inst. of Technology, Inc., 55 F.3d

SF i COR Cie FI: isk 50 ens cue ee eee 29

Mason v. Stallings, 82 F.3d 1007 (11th Cir. 1996) ..... 29

McCollough v. Atlanta Beverage Co., 929 F. Supp.

1409 UN.D. Gt. IS6G). ci asec ichcci piesa ae 28

McDonald v. Commonwealth of Pennsylvania, 62 F.3d

SE (5h CAG. SII cic. ce wenekcaweansae roe 20

et lh el at as wert

SET

ili

TABLE OF AUTHORITIES - Continued

Page

Robinson v. Global Marine Drilling Co., 101 F.3d 35

NN hae Ped orn 5 ks vi ose de Vda Ges vss >a. 20

Sanders v. Arneson Prod., Inc., 91 F.3d 1351 (9th Cir.

sna SS Gee hein s'y's' opis v8 heres bin 0. s0 oe ise wade 20

School Bd. of Nassau County v. Arline, 480 U.S. 273,

107 S. Ct. 1123, 94 L. Ed. 2d 307 (1987)....22, 23, 24

Sherrod v. American Airlines, Inc., 132 F.3d 1112 (5th

RE MERU iy cub Vs S bere sc 0a a ey os ess noes 14, 15, 20

Snow v. Ridgeview Medical Ctr., 128 F.3d 1201 (8th

ME Wa aeons ey as i vated feud teks eo bo eta 14

Taylor v. U.S. Postal Serv., 946 F.2d 1214 (6th Cir.

oe) NEARER SY REESE ate a a grace a a 22, 23, 24

Terrell v. USAir, Inc., 955 F. Supp. 1448 (M.D. Fla.

Ene OLE ENVGS CRN 5405 Caos 45 CWed bed wee neneasvee 28

U.S. E.E.O.C. v. AIC Security Investigations, Ltd., 55

eee MO OS BT eco od aoe kde deules'v ccs 29

Vaughan v. Harvard Indus., Inc., 926 F. Supp. 1340

I NN i oe we kay e¥e 28

Williams v. Channel Master Satellite Sys., Inc., 101

IY MN RLM BOT cov oy ok ois cea wee be beac 15, 16

Wooten v. Farmland Foods, 58 F.3d 382 (8th Cir.

Ce RE IORE rap Ae EIA rR aE a a 16

STATUTES:

EE EM eee E i ih ce hdd VP as'e'd chev ce 02 soa os 22

BE BOG a dg as sie 6s bu. 0 8 58-050 | ie ARE Sa Me Be F

RTE MAE RE GCL eet si cuss cdcaduvvwes-vrres's 26, 29

RUG ECM ER daciaus Sis eis cave cc's cs these eee 17

iV

TABLE OF AUTHORITIES — Continued

Page

OTHER AUTHORITIES:

ao CR & Biss vk neh oak one eeeca ees ae @ Pit» eee |

29 C.F.R. Pt. 1630, Appendix to Part 1630 — Inter-

pretive Guidance to Title I of the ADA........ 18, 20

1

STATUTES AND REGULATIONS INVOLVED

In addition to the statutes set forth in the Petition For

Writ Of Certiorari, it is respectfully submitted that the

following statutes and regulations are involved in this

case:

29 C.F.R. § 1630.2(j)(2)

The following factors should be considered

in determining whether an individual is

substantially limited in a major life activity:

(i) The nature and severity of the impair-

ment;

(ii) The duration or expected duration of

the impairment; and

(iii) The permanent or long term impact,

or the expected permanent or long term

impact of or resulting from the impairment.

29 C.F.R. § 1630.2(k)

Has a record of such impairment means has

a history of, or has been misclassified as

having, a mental or physical impairment

that substantially limits one or more major

life activities.

STATEMENT OF THE CASE

The Respondents respectfully submit that the pub-

lished opinion of the United States Court of Appeals for

the Eighth Circuit accurately describes the course of pro-

ceedings below. Because the Petitioner’s discussion of the

facts fails to fully set forth the facts material to the

consideration of the questions presented, the Respon-

dents will provide such a thorough recitation of the facts.

2

1. Statement Of The Facts.

Midland Computer, Inc. is a Nebraska corporation

which does business as ComputerLand of Nebraska and

which is also known as ComputerLand. Since 1992, the

business operations of ComputerLand have consisted of

the selling of personal computers and related products

and the providing of maintenance and support services

therefor, directly to businesses. Prior to 1992, the business

operations of ComputerLand consisted of retail sales of

personal computers to home users and small businesses,

but such retail operations were transitioned out by 1992

and ComputerLand no longer engages in such retail oper-

ations.

The computer equipment which ComputerLand sells

directly to businesses consists of computers and all acces-

sories such as monitors, servers, keyboards, printers,

scanners, and battery backup systems. These various

components to a complete computer system are of var-

ious sizes and weights. For example, servers weigh fifty

pounds, monitors or displays weigh from thirty-one

pounds up to eighty-six pounds, printers weigh forty-six

pounds and more, and battery backup systems weigh

from fifty pounds to more than one-hundred pounds.

Seventeen inch monitors are the standard size monitor for

ComputerLand’s customers, and these seventeen inch

monitors weigh between forty-eight and fifty-nine

pounds. Some of these computer components have an

“on-site 3-year warranty” and some have a “3-year; on-

site lst year” warranty.

Between 1990 and 1995, ComputerLand employed

approximately ten to thirteen full-time and part-time ser-

vice technicians. The duties of these service technicians

were to install, repair, and service all of the computer

3

equipment sold to ComputerLand’s customers. In per-

forming these duties the service technicians were

required to lift computer equipment, transport computer

equipment between the customer site and Computer-

Land’s shop, and move objects at the customer site such

as desks, shelves, and chairs. Mr. Gutridge agrees that

ComputerLand’s service technicians were required to lift

computer equipment, that the lifting of computer equip-

ment in excess of forty-five and fifty pounds was

required, that the lifting of heavy equipment was

required, that the lifting of equipment weighing fifty to

seventy-five pounds was something that ComputerLand

expected service technicians to do, and that the moving

of equipment which weighed as much as one-hundred

pounds while working alone at a customer site was also

required.

In order to provide services to its customers, Com-

puterLand’s service technicians are dispatched to the cus-

tomer’s site and ComputerLand’s service technicians are

all thus “outbound” service technicians. Each service

technician functions independently of the other service

technicians and they do not work as a team. All service

work is to be performed at the customer’s site if at all

feasible, and service work is to be performed at Comput-

erLand’s shop only when it cannot feasibly be accom-

plished at the customer’s site. The performance of all

service work at the customer’s site is either pursuant to

the “on-site” service warranties or for increased customer

convenience.

ComputerLand does not have any “inbound” or “in-

shop” service technician positions where the service tech-

nician just works on computer equipment at Computer-

Land’s shop. In the 1980s and into the early 1990s, the

4

majority of service work was performed in Computer-

Land’s shop, but this was when ComputerLand’s busi-

ness operations consisted of retail sales to home users

and small businesses. Such retail operations were transi-

tioned out by 1992 and ComputerLand no longer runs

such retail operations or such in-shop service work. The

percentage of ComputerLand’s business which consists of

a customer bringing in computer equipment for service

work is very, very small and is less than one-quarter of

one percent.

In the fall of 1990 ComputerLand hired Mr. Gutridge

as an outbound service technician. While so employed

and on March 16, 1993, Mr. Gutridge was lifting a fifty-

five pound monitor when he heard his left wrist snap.

Thereafter and through June 1995, Mr. Gutridge received

medical treatment for left and right carpal tunnel syn-

drome and left and right cubital tunnel syndrome. Such

medical treatment included five separate surgeries on Mr.

Gutridge’s left and right wrists and elbows, and it was

the opinion of two physicians that Mr. Gutridge’s injury

and conditions were all due to occupational activity at

ComputerLand and were thus covered under workers’

compensation.

More specifically and with regard to Mr. Gutridge’s

conditions, his right carpal tunnel syndrome was diag-

nosed to be mild, his left carpal tunnel syndrome was

diagnosed to be borderline, and his right cubital tunnel

syndrome was also diagnosed to be mild. Furthermore,

neurological and electromyographic examinations were

normal and revealed no evidence of acute or chronic

denervation, no evidence of a generalized neuropathic

process, and no evidence of an ongoing neurologic injury.

2 EIT OME Oe ne RE TTT

5

Between March 1993 and June 1995, ComputerLand

assigned Mr. Gutridge to light duty work as an in-shop

service technician because of lifting restrictions placed on

him by his treating physician. This assignment was tem-

porary and Mr. Gutridge acknowledges such, and no

other ComputerLand service technician other than Mr.

Gutridge was assigned as an in-shop service technician.

Mr. Gutridge’s lifting restrictions varied during this time

based on where he was with his medical treatment, and

Mr. Gutridge worked as an in-shop service technician by

using the assistance of other personnel when lifting.

ComputerLand was cooperative and supportive regard-

ing Mr. Gutridge’s temporary restrictions.

On June 19, 1995, Mr. Gutridge had reached maxi-

mum medical improvement and his treating physician

issued a written release for Mr. Gutridge to return to light

duty work with this permanent restriction: “May lift 45 Ib

5% of work day, 35 lb 33% of time 20 lb 20% of time, 10 Ib

constantly (permanent).” Mr. Gutridge gave this written

release to ComputerLand’s personnel director, Robert

Keefe, and Mr. Keefe advised Mr. Gutridge not to exceed

any of his permanent lifting restrictions.

Mr. Keefe delivered the written release to Computer-

Land’s president, Wayne Clure, and the two of them then

discussed Mr. Gutridge’s future employment. More speci-

fically, Mr. Keefe and Mr. Clure discussed the duties of

ComputerLand’s service technicians, whether Mr. Gut-

ridge could perform the duties of a service technician

with his permanent lifting restriction, the reasonable

accommodations that could be made, the other positions

available, and the nature of ComputerLand’s business.

Based on Mr. Gutridge’s permanent lifting restriction, it

was decided that Mr. Gutridge was not able to perform

6

the duties of a ComputerLand service technician, that

there were no other positions available for Mr. Gutridge,

that there were no reasonable accommodations that could

be made, and that Mr. Gutridge’s employment with Com-

puterLand would be terminated.

On June 22, 1995, ComputerLand gave Mr. Gutridge

a letter of termination. The body of this termination letter

States:

We have been hopeful for some time

now that your physical problems were tem-

porary and that through rehabilitation you

would be able to resume your job without

the assistance of another employee to han-

dle the lifting requirements.

We have been informed that your reha-

bilitation program has ended and that the

medical restrictions as identified by Dr.

David Clough are now rated as permanent.

That condition unfortunately prevents you

from being able to fully accomplish the

tasks necessary to perform your job func-

tions.

We regret to inform you that we will no

longer retain your services under these con-

ditions. Your employment is being termi-

nated effective June 23, 1995. We have been

told that you will be eligible for retraining

under workman’s compensation and hope

that you will take advantage of this oppor-

tunity.

You have been a valued employee and

we sincerely regret that we do not have a

position available that can utilize your skills

without creating a hardship for the com-

pany.

Thank you for the efforts you have

given this company over the past four and a

half years. We wish you the best.

7

Mr. Clure and Mr. Keefe did not believe that Mr.

Gutridge was disabled and did not perceive Mr. Gutridge

to be disabled, and Mr. Gutridge was not terminated

because of a disability or any perceived disability. Mr.

Gutridge does not know of any information or evidence

which would support an allegation that ComputerLand

was trying to get rid of him for any reasons other than

what is stated in the termination letter.

Mr. Gutridge’s abilities as a computer service techni-

cian are above average and his permanent lifting restric-

tion does not limit his ability to perform the job of a

service technician for other employers which do not

require on-site customer service. In fact on July 17, 1995,

which is just three and a half weeks after his termination

from ComputerLand, Mr. Gutridge was employed as a

computer service technician by another company in

Omaha. This other company was a vendor of on-site and

in-shop computer repairs, and Mr. Gutridge was so

employed by this other company through May 1997. Dur-

ing such employment Mr. Gutridge was promoted to lead

service technician and his annual salary was $27,500.00.

This other employer closed its commercial division in

May 1997 and Mr. Gutridge then started employment as a

computer service technician for yet another company in

Omaha. The period of unemployment between these two

companies was just two weeks, and Mr. Gutridge never

applied for employment any place else because he had

been guaranteed employment with the second company.

The business operations of the second company consist of

retail in-shop and on-site computer repairs. Mr. Gut-

ridge’s annual salary at this second company is

$26,000.00, and Mr. Gutridge is able to perform all func-

tions of this job.

8

As agreed to in the Application For Approval Of

Lump Sum Settlement Agreement which was filed with

the Nebraska Workers’ Compensation Court in October

1995, after his termination from ComputerLand Mr. Gut-

ridge returned to other employment on July 17, 1995 and

he “possesses sufficient present job skills to enable him to

obtain and retain employment at a wage equal to or in

excess of his wage with [ComputerLand]. .. . ” Further-

more, in the Application For Approval Of Lump Sum

Settlement Agreement, Mr. Gutridge waived any rights

he may have had to rehabilitation services pursuant to

the Nebraska Workers’ Compensation laws.

2. The Petition Misrepresents The Decision Of

The United States District Court For The Dis-

trict Of Nebraska.

As was alleged in Mr. Gutridge’s Amended Com-

plaint, it was the permanent lifting restriction which sup-

posedly constituted a disability under 42 U.S.C.

§ 12102(2). Likewise, Mr. Gutridge twice testified in his

deposition that his disability was the permanent lifting

restriction, and Mr. Gutridge further testified that he did

not know of any information or evidence which would

support an allegation that ComputerLand was trying to

get rid of him for any reasons other than what was stated

in ComputerLand’s termination letter.

The crux of the arguments that were presented to the

District Court therefore addressed whether there were

genuine issues of material fact as to whether Mr. Gut-

ridge’s lifting restriction constituted a physical impair-

ment which substantially limited major life activities. Mr.

9

Gutridge did make a secondary argument that his tempo-

rary course of treatment and period of recovery constitu-

ted a record of such an impairment, but the District

Court’s written decision properly focused on the crux of

the parties’ arguments, and by deciding that Mr. Gutridge

was not a disabled individual the District Court resolved

Mr. Gutridge’s record of impairment argument against

him. Similarly, by deciding that Mr. Gutridge was not a

disabled individual, the District Court resolved that all

major life activities, including the performance of manual

tasks, were not substantially limited. The assertions that

the District Court did not address and therefore left unre-

solved, the issues of a record of impairment and whether

Mr. Gutridge was substantially limited in the perfor-

mance of manual tasks, thus misrepresent the District

Court’s decision.

3. The Petition Misrepresents The Decision Of

The United States Court Of Appeals For The

Eighth Circuit.

On appeal Mr. Gutridge’s arguments focused on

whether he had a record of impairment concerning the

major life activities of working, lifting, and performing

manual tasks. The Eighth Circuit ruled, however, that Mr.

Gutridge failed to present a genuine issue of fact that one

or more of his major life activities were substantially

limited, and the Eighth Circuit also ruled that Mr. Gut-

ridge failed to present a genuine issue of fact that he is

disabled within the meaning of the ADA. In so ruling the

Eighth Circuit resolved all of Mr. Gutridge’s arguments

against him. Mr. Gutridge’s assertions that the Eighth

Circuit overlooked whether the major life activity of per-

forming manual tasks was substantially limited, and that

10

the Eighth Circuit failed to consider his impairment’s

cumulative effect on all major life activities, are misrepre-

sentations of the Eighth Circuit’s decision.

REASONS FOR DENYING THE WRIT

1. The Decisions Below Resolved All Arguments

Against Mr. Gutridge.

Mr. Gutridge’s Petition makes several assertions that

the courts below either overlooked or failed to address or

consider some of his arguments. As previously discussed,

however, by deciding that there were no genuine issues

of fact that Mr. Gutridge was not disabled under the

ADA, the courts below resolved all of Mr. Gutridge’s

arguments against him. Mr. Gutridge’s assertions about

overlooked arguments are misrepresentations, and such

assertions are therefore insufficient grounds for granting

certiorari.

2. The Decisions Below Properly Interpreted And

Applied The Americans With Disabilities Act.

The thrust of Mr. Gutridge’s Petition is simply that

the decisions of the courts below are erroneous. What the

courts below determined, was that there was an absence

of evidence establishing a prima facie case on the essential

element of being disabled under the ADA, and it is

respectfully submitted that in so acting the courts below

properly ruled and properly interpreted and applied the

ADA. Mr. Gutridge therefore fails to present any compel-

ling reasons for granting a writ of certiorari.

With regard to what constitutes a disability, the ADA

provides that “[t]he term ‘disability’ means, with respect

to an individual — (A) a physical or mental impairment

11

that substantially limits one or more major life activities

of such individual; (B) a record of such an impairment; or

(C) being regarded as having such an impairment.” 42

U.S.C. §§ 12102(2)(A)-(C). The key terms in this definition

of disability, are in turn defined in regulations issued by

the Equal Employment Opportunity Commission. As

applicable here, “physical impairment” is defined in part

as any physiological disorder or condition affecting the

neurological or musculoskeletal systems. 29 C.F.R.

§ 1630.2(h)(1). “Substantially limits” is defined as mean-

ing:

(i) Unable to perform a major life

activity that the average person in the gen-

eral population can perform; or

(ii) Significantly restricted as to the

condition, manner or duration under which

an individual can perform a particular

major life activity as compared to the condi-

tion, manner, or duration under which the

average person in the general population

can perform that same major life activity.

29 C.F.R. §§ 1630.2(j)(1)(i) and (ii). The term “major life

,

activities” is defined to mean “functions such as caring

for oneself, performing manual tasks, walking, seeing,

hearing, speaking, breathing, learning, and working.” 29

C.F.R. § 1630.2(i). The E.E.O.C.’s Interpretive Guidance to

the regulations further provides that “other major life

activities include, but are not limited to, sitting, standing,

lifting, reaching.” 29 C.F.R. Pt. 1630, Appendix to Part

1630 — Interpretive Guidance to Title I of the ADA,

§ 1630.2(i). And the term “has a record of such an impair-

ment” is defined as meaning “has a history of, or has

12

been misclassified as having, a mental or physical impair-

ment that substantially limits one or more major life

activities.” 29 C.F.R. § 1630.2(k).

When determining-whether an individual is substan-

tially limited in a major life activity, the regulations fur-

ther provide that there be consideration of the nature and

severity of the impairment; the duration or expected

duration of the impairment; and the permanent or long

term impact, or the expected permanent or long term

impact of or resulting from the impairment. 29 C.F.R.

§§ 1630.2(j)(2)(i)-(iii).

Finally, as to whether the major life activity of work-

ing is substantially limited, the regulations provide:

(3) With respect to the major life activ-

ity of working -

(i) The term substantially limits means

significantly restricted in the ability to per-

form 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 activ-

ity of working.

(ii) In addition to the factors listed in

paragraph (j)(2) of this section, the follow-

ing factors may be considered in determin-

ing whether an individual is substantially

limited in the major life activity of “work-

ing”:

(A) The geographical area to which

the individual has reasonable access;

(B) The job from which the individual

has been disqualified because of an impair-

ment, and the number and types of jobs

utilizing similar training, knowledge, skills

13

or abilities, within that geographical area,

from which the individual is also disqual-

ified because of the impairment (class of

jobs); and/or

(C) The job from which the individual

has been disqualified because of an impair-

ment, and the number and types of other

jobs not utilizing similar training, knowl-

edge, skills or abilities, within that geo-

graphical area, from which the individual is

also disqualified because of the impairment

(broad range of jobs in various classes).

29 C.F.R. §§ 1630.2(j)(3)(i)(ii)(A)-(C).

ACTUAL DISABILITY

The crux of the arguments presented to the District

Court concerned whether there were genuine issues of

material fact as to whether Mr. Gutridge had an actual

disability under 42 U.S.C. § 12102(2)(A), which is there

defined as a physical impairment that substantially limits

major life activities. The District Court decided that Mr.

Gutridge had failed to bring forth sufficient facts to raise

a genuine issue, and that Mr. Gutridge was thus not

disabled within the meaning of 42 U.S.C. § 12102(2)(A)

because Mr. Gutridge’s lifting restriction did not substan-

tially limit his major life activities. It is respectfully sub-

mitted that summary judgment was properly granted and

affirmed because of the absence of evidence establishing

a prima facie case on this element of Mr. Gutridge’s ADA

claim, and that the courts below thus properly inter-

preted and applied the ADA.

First, as alleged in Mr. Gutridge’s Complaint, and as

Mr. Gutridge himself testified, his disability is the written

lifting restriction which was issued by his physician in

14

June 1995. This lifting restriction provides that Mr. Gut-

ridge may lift 45 lbs. 5% of the work day, 35 lbs. 33% of

the time, 20 Ibs. 20% of the time, and 10 lbs. constantly.

But as the circuit courts have held, such a written lifting

restriction is not an impairment which substantially

limits major life activities and is not therefore a disability

under the ADA, and an employer’s actions based on a

physician’s written restrictions do not violate the ADA.

For example, in Snow v. Ridgeview Medical Ctr., 128

F.3d 1201 (8th Cir. 1997), the plaintiff underwent a cervi-

cal fusion and some years later the plaintiff’s physician

recommended a twenty-five pound lifting restriction. Id.

at 1204. Years later the plaintiff was terminated and she

44a

asserted that her physical impairment ” ‘affects such

activities as performing manual tasks, . . . lifting, and

working.” Id. at 1207. In affirming summary judgment for

the defendant-employer it was held: “While lifting is

noted under the regulations as a major life activity, a

general lifting restriction imposed by a physician, with-

out more, is insufficient to constitute a disability within

the meaning of the ADA.” Id.

A flight attendant was the plaintiff in Sherrod v. Amer-

ican Airlines, Inc., 132 F.3d 1112, 1116 (5th Cir. 1998), and

after an on-the-job neck injury which required surgery,

the plaintiff reinjured her neck while working and had

surgery again. Id. Following the second surgery the plain-

tiff was placed on sick leave for a five year term pursuant

to the collective bargaining agreement. Id. After three

years the plaintiff sought reinstatement, but reinstate-

ment was denied because the plaintiff could only lift

forty-five pounds occasionally and twenty-five pounds

frequently. Id. Summary judgment against the plaintiff’s

ADA claim was affirmed on the basis that the lifting

PR = =

15

restriction was not a substantial limitation on a major life

activity. Id. at 1120.

In Helfter v. United Parcel Serv., Inc., 115 F.3d 613 (8th

Cir. 1997), the plaintiff had a permanent medical restric-

tion which included “a lift limit of ten pounds frequently

and twenty pounds occasionally.” Id. at 615. The plain-

tiff’s disability discrimination claim was based on the

Iowa Civil Rights Act and not the ADA, but in affirming

summary judgment for the defendant-employer it was

held that evidence that the impairment limits work-

related activities such as lifting does not create a genuine

issue regarding substantial limitations on other major life

activities. Id. at 617.

The plaintiff in Aucutt v. Six Flags Over Mid-America,

Inc., 85 F.3d 1311 (8th Cir. 1996), was hospitalized for

several days and later returned to work with a doctor’s

release prohibiting the lifting of more than twenty-five

pounds. Id. at 1314. The circuit court affirmed summary

judgment for the defendant-employer and held that the

lifting restriction, without more, did not constitute an

impairment that substantially limits major life activities

under 42 U.S.C. § 12102(2)(A). Aucutt, 85 F.3d at 1319.

Summary judgment for the defendant-employer was

likewise affirmed in Williams v. Channel Master Satellite

Sys., Inc., 101 F.3d 346 (4th Cir. 1996), cert. denied, ___ US.

__, 117 S. Ct. 1844, 137 L. Ed. 2d 1048 (1997). The

plaintiff in that case had a restriction from lifting more

than twenty-five pounds, and citing to the decision in

Aucutt the Fourth Circuit held: “Like the Eighth Circuit,

we hold, as a matter of law, that a twenty-five pound

lifting limitation — particularly when compared to an

16

average person’s abilities - does not constitute a signifi-

cant restriction on one’s ability to lift, work, or perform

any other major life activity.” Williams, 101 F.3d at 349.

The case of Gerdes v. Swift-Eckrich, Inc., 125 F.3d 634

(8th Cir. 1997), involved a plaintiff who had undergone

two heart surgeries and who had returned to work with

medical restrictions, in part, against excessive lifting. Id.

at 635. The defendant-employer based its conduct on the

plaintiff’s actual medical restrictions, id. at 637, and the

circuit court affirmed the granting of summary judgment

for the employer because the plaintiff failed to show that

he was disabled as defined by the ADA. Id. at 637-38.

In Halperin v. Abacus Technology Corp., 128 F.3d 191

(4th Cir. 1997), the plaintiff injured his back at work, but

he returned to work for several months and then he took

an extended leave for recuperation. Id. at 195. After a

couple of months the plaintiff was cleared by his doctor

to return to work with a twenty pound lifting restriction.

Id. Summary judgment for the employer was affirmed

because the plaintiff did not have a significant restriction

on the ability to perform any major life activity. Id. at 200.

A diagnosis of bilateral carpal tunnel syndrome and

a doctor’s twenty pound lifting restriction were involved

in Wooten v. Farmland Foods, 58 F.3d 382, 384 (8th Cir.

1995). Like the case at bar the termination decision of the

defendant-employer in Wooten was based on the physical

restrictions imposed by the doctor and the unavailability

of other jobs which could accommodate the restrictions.

Id. at 386. The circuit court concluded that there was no

material dispute as to whether the plaintiff was disabled

within the meaning of the ADA and summary judgment

for the defendant-employer was thus affirmed. Id.

17

The foregoing authorities establish that Mr. Gut-

ridge’s written lifting restriction is not, without more, an

impairment which substantially limits any major life

activities and is thus not an actual disability within the

meaning of 42 U.S.C. § 12102(2)(A), and that Computer-

Land’s termination of Mr. Gutridge’s employment based

on the lifting restriction and Mr. Gutridge’s inability to

perform the essential job functions, plus the unavail-

ability of other positions which could accommodate the

restriction, does not violate the ADA. The courts below

thus properly interpreted and applied the ADA, and

summary judgment was therefore properly granted and

affirmed because of the absence of evidence establishing

a prima facie case on this element of Mr. Gutridge’s ADA

claim.

RECORD OF IMPAIRMENT

The almost exclusive focus of Mr. Gutridge’s argu-

ments on appeal, was whether he has a record of an

impairment as provided in 42 U.S.C. § 12102(B). Based on

his course of treatment and the attendant medical

records, Mr. Gutridge asserts that he is entitled to sum-

mary judgment on the essential element of being a dis-

abled individual within the meaning of the ADA because

he allegedly has such a record of an impairment. A

number of fatal defects exist, however, with Mr. Gut-

ridge’s assertion.

First, even assuming arguendo that Mr. Gutridge’s

course of treatment and the attendant medical records

constitute a record of an impairment, there is an absence

of evidence to show that Mr. Gutridge was terminated

because of any such record of impairment. The ADA

prohibits the discriminatory discharge of a qualified

18

employee with a disability “because of” the disability. 42

U.S.C. § 12112(a). Stated in a different vernacular and

with regard to having a record of an impairment, the

ADA prohibits an employer from discriminatorily dis-

charging a qualified employee with a record of an impair-

ment “because of” that employee’s record of an

impairment. As further explained in the E.E.O.C.’s Inter-

pretive Guidance, the intent of the record of impairment

provision is to ensure that employees are not discrimi-

nated against “because of” a history of a disability and

that employees are not discriminated against “because”

they have been misclassified as disabled, and this provi-

sion “is satisfied if a record relied on by an employer

indicates that the individual has or has had a substan-

tially limiting impairment.” 29 C.F.R. Pt. 1630, Appendix

to Part 1630 — Interpretive Guidance to Title I of the ADA,

§ 1630.2(k).

Here, however, there is an absence of evidence that

ComputerLand terminated Mr. Gutridge “because of” his

course of treatment or “because of” the attendant medical

records. Additionally, there is an absence of evidence that

ComputerLand “relied on” the course of treatment or the

attendant medical records when deciding to terminate

Mr. Gutridge. Instead, the unrefuted evidence is that the

individuals at ComputerLand did not believe or perceive

Mr. Gutridge to be disabled, that Mr. Gutridge was not

terminated because of a disability or any perceived dis-

ability, that Mr. Gutridge’s lifting restriction was not

believed to limit his ability to perform the job of a service

technician for other companies which do not require on-

site customer service, and that Mr. Gutridge’s employ-

ment was terminated in June 1995 because he was not

———————————————————eeeewowr

————————eEee*

19

then able to perform the duties of a ComputerLand ser-

vice technician under his recently imposed permanent

lifting restriction and also because ComputerLand did

not have a service technician position which could

accommodate Mr. Gutridge’s restrictions. Mr. Gutridge

himself twice testified that his disability was the perma-

nent lifting restriction, and Mr. Gutridge further testified

that he does not know of any information or evidence

which would support an allegation that ComputerLand

was trying to get rid of him for any reasons other than

what is stated in ComputerLand’s termination letter. No

evidence therefore exists that “because of” Mr. Gutridge’s

past course of treatment and the attendant medical

records, ComputerLand decided to terminate his employ-

ment.

Mr. Gutridge in fact fully acknowledges that he was

not terminated because of any supposed record of impair-

ment, for in both his Complaint and his Petition herein it

is stated that ComputerLand terminated his employment

“based upon his permanent lifting restriction.” (Petition

For Writ Of Certiorari at 3.) This is thus not a neatly

tailored case wherein this Court could render a narrow

and focused decision on the ADA’s “record of impair-

ment” provision. On the contrary, it is respectfully sub-

mitted that the Question Presented For Review would not

be reached if a writ of certiorari was granted, because

there is no genuine issue of material fact that Mr. Gut-

ridge was not terminated because of any record of an

impairment and the Eighth Circuit’s decision would have

to be affirmed on this basis.

Second, the record of an impairment which is

required by the ADA is a history of or a misclassification

as having an impairment which substantially limits a

20

major life activity. 42 U.S.C. §§ 12102(2)(A) and (B); 29

C.F.R. § 1630.2(k). In other words, it must be a record of a

disability that satisfies the ADA. Land v. Baptist Medical

Ctr., 164 F.3d 423, 425 (8th Cir. 1999); Colwell v. Suffolk

County Police Dep't, 158 F.3d 635, 645 (2d Cir. 1998); Robin-

son v. Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir.

1996), cert. dented, _ § US... 117 3S. Ce IS, 137

L. Ed. 2d 1028 (1997). Temporary medical conditions,

however, are not a disability, Halperin v. Abacus Technology

Corp., 128 F.3d 191, 199 (4th Cir. 1997), and temporary

impairments with no long-term or permanent impact are

also usually not a disability. 29 C.F.R. Pt. 1630, Appendix

to Part 1630 — Interpretive Guidance to Title I of the ADA,

§ 1630.2(j). Likewise, temporary impairments while

recovering and recuperating from an injury or surgery

are not disabilities under the ADA. Sanders v. Arneson

~Prod., Inc., 91 F.3d 1351, 1353-54 (9th Cir. 1996), cert.

denied, .. US... 5 417 S.Ct. A267, 197 &. Ba 2a aes

(1997); Heintzelman v. Runyon, 120 F.3d 143, 145 (8th Cir.

1997); McDonald v. Commonwealth of Pennsylvania, 62 F.3d

92, 95-96 (3d Cir. 1995). Thus, the events concerning

temporary medical conditions and temporary impair-

ments while recovering and recuperating from an injury

or surgery do not constitute a record or history of a

disability, and if the alleged impairment is not a disabil-

ity, then there necessarily is likewise no record or history

of a disability. Land, 164 F.3d at 425; Colwell, 158 F.3d at

645; Sherrod, 132 F.3d at 1121; Robinson, 101 F.3d at 37.

Here, Mr. Gutridge is not disabled under the ADA

because his permanent lifting restriction is not an impair-

ment which substantially limits any major life activities,

and therefore the temporary course of treatment and the

21

period of recovery which preceded the resulting perma-

nent lifting restriction are likewise not a record of an

impairment that substantially limits major life activities.

Mr. Gutridge does not have a history of a permanent

lifting restriction which substantially limits major life

activities, and there is also no evidence of any record

wherein Mr. Gutridge was misclassified as having a per-

manent lifting restriction which substantially limits major

life activities. Mr. Gutridge continued to work for Com-

puterLand during his temporary course of treatment and

period of recovery, although it was in a temporary light

duty position as an in-shop service technician and pur-

suant to temporary lifting restrictions, and there is no

evidence that any other major life activities were substan-

tially limited during Mr. Gutridge’s temporary course of

treatment and period of recovery. A temporary course of

treatment and period of recovery which do not result in

an impairment which substantially limits major life activ-

ities and during which temporary period the employee

continues employment and is not otherwise substantially

limited in performing any other major life activities, do

not as a matter of law constitute a record of impairment

which substantially limits major life activities. The Eighth

Circuit’s decision correctly resolved Mr. Gutridge’s

record of an impairment argument against him and in so

doing the Eighth Circuit properly interpreted and applied

the ADA and the foregoing authorities. Mr. Gutridge thus

incorrectly asserts that the decisions of the courts below

are erroneous, and no grounds therefore exist for grant-

ing certiorari on such supposed basis.

22

3. There Are No Conflicting Decisions.

Mr. Gutridge asserts that the decisions of the courts

below conflict with the decisions in School Bd. of Nassau

County v. Arline, 480 U.S. 273, 107 S. Ct. 1123, 94 L. Ed. 2d

307 (1987), Aldrich v. Boeing Co., 146 F.3d 1265 (10th Cir.

1998), and Taylor v. U.S. Postal Serv., 946 F.2d 1214 (6th

Cir. 1991). It is respectfully submitted, however, that no

such conflict exists, and that no grounds therefore exist

for granting certiorari on such supposed basis.

The plaintiff in Arline was an elementary school

teacher who was hospitalized for tuberculosis in 1957.

Arline at 276, 107 S. Ct. at 1125, 94 L. Ed. 2d at 314. The

disease was in remission for the next twenty years, but in

1978 the plaintiff had two relapses and the school board

thereafter terminated the plaintiff's employment because

of the continued reoccurrences. Id. The plaintiff sued

pursuant to the Rehabilitation Act, and the school board

conceded that the plaintiff's hospitalization for tuber-

culosis in 1957 demonstrated that the plaintiff had a

record of a physical impairment. Id. at 281, 107 S. Ct. at

1128, 94 L. Ed. 2d at 317. This Court held that the tuber-

culosis

was serious enough to require hospitaliza-

tion, a fact more than sufficient to establish

that one or more of her major life activities

were substantially limited by her impair-

ment. Thus, Arline’s hospitalization for

tuberculosis in 1957 suffices to establish that

she has a “record of . . . impairment” within

the meaning of 29 U.S.C. § 706(7)(B)(ii), and

is therefore a handicapped individual.

23

Arline at 281, 107 S. Ct. at 1127, 94 L. Ed. 2d at 317. No

factual details about the hospitalization are provided

however.

Based on such language, plaintiffs have been assert-

ing that Arline establishes that their hospitalizations con-

stitute records of substantially limiting impairments, but

the circuit courts have consistently and properly rejected

such a reading of Arline. See Colwell v. Suffolk County

Police Dep't, 158 F.3d 635, 645-46 (2d Cir. 1998); Burch v.

Coca-Cola Co., 119 F.3d 305, 316-17 (5th Cir. 1997), cert.

desied, VS... 1186S: Gt. 871, 139 L. Ed. 2a 768

(1998); Demming v. Housing and Redevelopment Auth. of

Duluth, 66 F.3d 950, 955 (8th Cir. 1995); and Taylor v. U.S.

Postal Serv., 946 F.2d 1214, 1217 (6th Cir. 1991). The rea-

soning of the circuit courts for so rejecting such a reading

of Arline, is best set forth in Burch, 119 F.3d at 317:

The quoted language from Arline can-

not be construed to obviate the requirement,

explicit in the ADA and its implementing

regulations, that purported conditions be

examined to ascertain whether a specific

condition substantially limited a major life

activity. The ADA requires an individu-

alized inquiry beyond the mere existence of

a hospital stay. Although the Court in Arline

“noted that the plaintiff's hospitalization

established a record of impairment, the

defendant had conceded that her acute

tuberculosis had been substantially limiting.

Indeed, the defendant’s position in Arline

was not that the plaintiff was not “hand-

icapped,” but rather that her contagious dis-

ease — tuberculosis —- was a threat to the

health of others (and therefore precluded

liability for termination on that basis). To

24

accept Burch’s reading would work a pre-

sumption that any condition requiring tem-

porary hospitalization is disabling - a

presumption that runs counter to the very

goal of the ADA.

The Eighth Circuit’s decision herein is consistent

with the foregoing reasoning and is consistent with the

other circuit courts’ proper interpretations of Arline. The

Eighth Circuit’s decision herein therefore does not con-

flict with the decisions in Arline or Taylor, and Mr. Gut-

ridge’s assertion to the contrary is erroneous and is

erroneously based on his own misinterpretation of Arline.

The Eighth Circuit’s decision also does not conflict

with the decision in Aldrich v. Boeing Co., 146 F.3d 1265

(10th Cir. 1998). The plaintiff in Aldrich was an assembly

worker who developed pain in his right hand and diffi-

culty using hand tools. Id. at 1267. He could not return to

work and he was put on a medical leave of absence. Id.

He was later released to return to limited work but there

was no work that he could do within his medical restric-

tions, so he continued on medical leave. Id. The medical

evaluations thereafter became less optimistic, and his

condition later became permanent, severe, and substan-

tially limiting. Id. at 1270. A decision to lay off the plain-

tiff was made a week before a permanent partial

disability rating was issued. Id. at 1267. The circuit court

held that it was error to rule that the plaintiff as a matter

of law could not be disabled until his permanent disabil-

ity rating was issued. Id. at 1271.

Here, as alleged in his Complaint and as Mr. Gut-

ridge twice testified, it was the permanent lifting restric-

tion and not the preceding temporary course of treatment

and period of recovery, which supposedly constituted his

disability. Also, unlike in Aldrich, there is no evidence

25

here that during the temporary course of treatment and

period of recovery, that Mr. Gutridge’s impairment ever

was severe or substantially limiting. Instead, Mr Gut-

ridge continued to work full time but pursuant to tempo-

rary restrictions, and the medical evaluations were that

Mr. Gutridge’s conditions were mild and borderline and

that there was no evidence of acute or chronic denerva-

tion or of a generalized neuropathic process or of an

ongoing neurologic injury. Mr. Gutridge’s condition did

not result in an impairment which substantially limits

any major life activities and, unlike in Aldrich, Mr. Gut-

ridge’s temporary conditions during his course of treat-

ment and period of recovery prior to the issuance of

permanent lifting restrictions, also did not involve

impairments which substantially limited any major life

activities.

The Eighth Circuit’s decision is respectfully submit-

ted to not be contrary to the decision in Aldrich, and no

grounds thus exist for granting certiorari on such sup-

posed basis.

4. The Decisions Below Are Supported On Other

Grounds.

Other grounds support the granting and affirmance

of summary judgment, and based on these other grounds

it is respectfully submitted that the Question Presented

For Review would not be reached if a writ of certiorari

was granted because affirmance would be required on the

basis of these other grounds.

26

QUALIFIED INDIVIDUAL

The ADA only applies to a “qualified individual,”

which is defined as “an individual with a disability who,

with or without reasonable accommodation, can perform

the essential functions of the employment position. .. . ”

42 U.S.C. § 12111(8). Assuming that Mr. Gutridge is an

individual with a disability, it is respectfully asserted that

summary judgment was properly granted and affirmed

because there are no genuine issues that Mr. Gutridge

could not perform the essential functions of a Computer-

Land service technician either with or without reasonable

accommodation.

First, as alleged in his Complaint and as Mr. Gutridge

himself testified, his supposed disability is the permanent

lifting restriction which is set forth in his written release

to return to light duty work. This permanent lifting

restriction limits Mr. Gutridge to lifting 45 Ibs. 5% of the

work day, 35 Ibs. 33% of the time, 20 Ibs. 20% of the time,

and 10 Ibs. constantly. As Mr. Gutridge further testified

the reasonable accommodation which he thinks Comput-

erLand had to provide in order to allow him to continue

working for ComputerLand, was to have other people

momentarily assist him with lifting as needed.

Second, there are no disputes that lifting computer

equipment and moving furniture which exceeds Mr. Gut-

ridge’s lifting restriction are essential functions of a Com-

puterLand service technician, and that Mr. Gutridge

because of his lifting restriction could not perform such

essential functions. Service technicians are routinely

required to lift computer components and move objects

such as desks and chairs which weigh in excess of forty-

five pounds, and in order to perform the duties of a

service technician for ComputerLand an individual has to

27

be able to lift weights in excess of forty-five pounds. A

Job Summary which was prepared by ComputerLand in

response to the request of Mr. Gutridge’s physician, lists

the ability to lift fifty to seventy-five pounds as an essen-

tial job function of a ComputerLand service technician,

and the specification sheets for the computer components

which are customarily sold, serviced, and installed by

ComputerLand, show that nine of the ten computer com-

ponents therein depicted exceed forty-five pounds. Even

Mr. Gutridge himself testified that ComputerLand’s ser-

vice technicians were required to lift computer equip-

ment, that the lifting of computer equipment in excess of

forty-five and fifty pounds was required, that the lifting

of heavy equipment was required, that the lifting of

equipment weighing fifty to seventy-five pounds was

something that ComputerLand expected service techni-

cians to do, and that the moving of equipment which

weighed as much as one-hundred pounds while working

alone at a customer site was also required. If a person

cannot lift or move items in excess of forty-five pounds,

he or she ~obviously cannot perform the service and

installation duties of a ComputerLand service technician.

There is thus no genuine issues that lifting computer

equipment and moving furniture in excess of forty-five

pounds are essential job functions of a ComputerLand

service technician and that Mr. Gutridge could not per-

form such essential functions.

Third, Mr. Gutridge’s suggested accommodation of

having other people assist him with lifting is not, as a

matter of law, a reasonable accommodation required by

the ADA. A reasonable accommodation must allow the

disabled person himself to perform the job, and the ADA

does not require an employer to accommodate a disabled

28

employee by having another employee assist the disabled

employee in the performance of the disabled employee’s

duties. McCollough v. Atlanta Beverage Co., 929 F. Supp.

1489, 1499 (N.D. Ga. 1996); Vaughan v. Harvard Indus., Inc.,

926 F. Supp. 1340, 1349 (W.D. Tenn. 1996). Also, Comput-

erLand’s service operations consist of service technicians

working independently with all service work to be per-

formed at the customer’s site in conjunction with “on-

site” service warranties, and thus such a suggested

accommodation would result in a fundamental and sub-

stantial change in ComputerLand’s service technician

operations because an assistant or another service techni-

cian would be required to accompany Mr. Gutridge while

he performs all of his outbound service calls. The ADA

does not require such an accommodation, and the ADA

also does not require that ComputerLand create a perma-

nent light duty position, or that ComputerLand create a

new position such as an in-shop service technician, or

that ComputerLand convert a temporary position into a

permanent position. Terrell v. USAir, Inc., 955 F. Supp.

1448, 1455 (M.D. Fla. 1996); Vaughan, 926 F. Supp. at

1348-49.

Thus, Mr. Gutridge is not a qualified individual

under the ADA, and summary judgment was therefore

properly granted and affirmed because of the absence of

evidence establishing a prima facie case on this element of

Mr. Gutridge’s ADA claim.

WAYNE CLURE’S INDIVIDUAL LIABILITY

As alleged in Mr. Gutridge’s Amended Complaint,

ComputerLand is a Nebraska corporation and at all times

relevant herein Wayne Clure was employed as Computer-

Land’s president and was acting in the scope and course

|

29

of such employment. The Affidavit of Mr. Clure supports

such allegations and it further establishes that Mr. Gut-

ridge was an employee of ComputerLand and that at no

time did Mr. Clure ever personally hire or employ Mr.

Gutridge. There is thus no factual dispute that Computer-

Land and not Mr. Clure, was Mr. Gutridge’s employer.

There is also no dispute that the ADA provides for

employer liability and not individual employee liability.

Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir. 1996); U.S.

E.E.0.C. v. AIC Security Investigations, Ltd., 55 F.3d 1276,

1279 (7th Cir. 1993). The definition of employer under the

ADA is “a person engaged in an industry affecting com-

merce who has 15 or more employees for each working

day in each of 20 or more calendar weeks in the current

or preceding calendar year, and any agent of such per-

son... . ” 42 U.S.C. § 12111(5)(A). The Seventh and

Eleventh Circuits have held that the term “agent” was

included in the definition for purposes of ensuring

respondeat superior liability and not to render decision-

making employees vulnerable to individual liability.

Mason, 82 F.3d at 1009; AIC Security, 55 F.3d at 1281. The

Eleventh Circuit made this very clear when it held: “The

plaintiff argued for individual liability because the defini-

tion of employer includes ‘any agent of such person.’ We

agree with the Seventh Circuit that the ‘agent’ language

was included to ensure respondeat superior liability of the

employer for the acts of its agents. .. . ” Mason, 82 F.3d at

1009. The definition of “employer” is thus to be construed

the same as that term is construed under Title VII of the

Civil Rights Act and the Age Discrimination In Employ-

ment Act, which preclude individual liability for persons

other than employers. Mason, 82 F.3d at 1009. See also

Lenhardt v. Basic Inst. of Technology, Inc., 55 F.3d 377,

30

379-81 (8th Cir. 1995) (holding that the Missouri Human

Rights Act, which defined employer similarly to Title VII

of the Civil Rights Act and the Age Discrimination In

Employment Act, did not allow for individual liability).

Thus, as a matter of law, Wayne Clure has no individual

liability and Summary judgment was properly granted

and affirmed on such basis.

CONCLUSION

For the reasons given herein, the Respondents

respectfully request that the Petition For Writ Of Cer-

tiorari be denied.

Respectfully submitted,

MIDLAND Computer, INc., d/b/a

COMPUTERLAND OF Nesraska, a/k/a

COMPUTERLAND; and Wayne Ciure as

President of ComputerLand,

Individually, Respondents,

Jerr C. MILLER

Counsel of Record

Duncan A. Younc

Younc & Wuite

8742 Frederick Street

P.O. Box 241358

Omaha, NE 68124-5358

(402) 393-5600

Attorneys for Respondents