Robert W. SMITH, Plaintiff-Appellant,
v.
MIDLAND BRAKE, INC., a division of Echlin, Inc., Defendant-Appellee.
Equal Employment Opportunity Commission; Jack Davoll, Deborah Clair, Paul Escobedo; Equal Employment Advisory Council; and City and County of Denver, Amici Curiae.
United States Court of Appeals, Tenth Circuit.https://leagle.com/images/logo.png
June 14, 1999.
June 14, 1999.
Attorney(s) appearing for the Case
Les E. Diehl of Goodell, Stratton, Edmonds & Palmer, L.L.P., Topeka, Kansas, for Plaintiff-Appellant.
Daniel M. Shea (James Allan Smith and Robert K. Haderlein, of Smith, Currie & Hancock, L.L.P., Atlanta, Georgia, and Mary Kathleen Babcock of Foulston & Siefken Law Offices, Wichita, Kansas, with him on the briefs) for Defendant-Appellee.
C. Gregory Stewart, Philip B. Sklover, Lorraine C. Davis, and Robert J. Gregory of the Equal Employment Opportunity Commission, Washington D.C, filed an amicus curiae brief for the Equal Employment Opportunity Commission in support of Plaintiff-Appellant. David C. Feola of King, Minning, Clexton & Feola, L.L.C., Denver, Colorado, and Marille E. Langhoff of the Law Office of Marilee Langhoff, Littleton, Colorado, filed an amicus curiae brief for Jack Davoll, Deborah Clair, and Paul Escobedo in support of Plaintiff-Appellant.
Ann Elizabeth Reesman, Ellen Duffy McKay and Douglas S. McDowell of McGuiness & Williams, Washington, D.C., and Daniel E. Muse, Denver City Attorney, J. Wallace Wortham, Jr., Denver Assistant City Attorney Supervisor, Sybil R. Kisken, Denver Assistant City Attorney, City and County of Denver, Colorado, filed an amicus curiae brief for the Equal Employment Advisory Council and the City and County of Denver in support of Defendant-Appellee.
Before SEYMOUR, Chief Judge, PORFILIO, ANDERSON, TACHA, BALDOCK, BRORBY, EBEL, KELLY, HENRY, BRISCOE, LUCERO, and MURPHY, Circuit Judges.
United States Court of Appeals, Tenth Circuit.
OPINION ON REHEARING EN BANC
EBEL, Circuit Judge.
In this en banc appeal, we are required to answer two questions concerning the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213.1 First, whether an employee can be a "qualified individual with a disability" when that employee is unable to perform the essential functions of his or her present job, regardless of the level of accommodation offered, but could...
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