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Tompkins v. Mineral

United States Court of Appeals, Ninth Circuit
Dec 2, 2008
302 F. App'x 666 (9th Cir. 2008)

Opinion

No. 07-15872.

Submitted November 21, 2008.

The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).

Filed December 2, 2008.

Thorndal Armstrong Delk Balkenbush Eisinger, Reno, NV, Katherine F. Parks, Esq., for Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada, Larry R. Hicks, District Judge, Presiding. D.C. No. CV-05-00270-LRH.

Before: HUG, NOONAN and IKUTA, Circuit Judges.


MEMORANDUM

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.


Tompkins's leg injury does not qualify as "a physical or mental impairment that substantially limits one or more of the major life activities." 42 U.S.C. § 12102(2)(A). Because running is not an activity "of central importance to daily life," it is not a major life activity. Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 197, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). That Tompkins walks with "some discomfort and a limp" does not establish his ability to walk is "substantially limit[ed]." 42 U.S.C. § 12102(2)(A). Tompkins's testimony demonstrates he is not "significantly restricted," 29 C.F.R. § 1630.2(j)(1)(ii), but rather has for years carried out professional duties and personal interests requiring walking. Tompkins thus fails to create a genuine issue of material fact as to a required element of his ADA claim, namely, whether he has a disability for purposes of 42 U.S.C. § 12102(2). Nor is the evidence sufficient to create a genuine issue of material fact as to whether Tompkins has a record of disability. § 12102(2)(B). See 42 U.S.C.

Tompkins alleges he was treated less favorably than younger deputies in violation of 29 U.S.C. § 623(a)(1), but the record does not include the ages of the employees in question. Tompkins's own testimony does not suffice because it lacks a basis in personal knowledge. See Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1028 (9th Cir. 2001). Tompkins therefore fails to create a genuine issue of material fact as to a required element of a prima facie case for an ADEA claim, namely, that he "lost out because of his age." O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996) (emphasis omitted).

AFFIRMED.


Summaries of

Tompkins v. Mineral

United States Court of Appeals, Ninth Circuit
Dec 2, 2008
302 F. App'x 666 (9th Cir. 2008)
Case details for

Tompkins v. Mineral

Case Details

Full title:Robert TOMPKINS, Plaintiff-Appellant, v. MINERAL, COUNTY OF; et al.…

Court:United States Court of Appeals, Ninth Circuit

Date published: Dec 2, 2008

Citations

302 F. App'x 666 (9th Cir. 2008)

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