dissenting.
I respectfully dissent.
Based upon the evidence in this particular case, I think the court errs in holding that the claimant, Stephen C. Orr, was not disabled as a matter of law within the meaning of the Americans with Disabilities Act of 1990(ADA). The court refuses to consider Orr’s contention that he was substantially limited in the major life activities of working and eating because the Seventh Circuit decision upon which he relies, Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir.2001), is first cited in a footnote in the district court’s decision. I know of no precedent in this or any other circuit that says a party must cite a particular case in the district court in order to rely upon it on appeal.
The majority opinion cites Shelton v. ContiGroup Cos., 285 F.3d 640 (8th Cir.2002), and Berg v. Norand Corp., 169 F.3d 1140 (8th Cir.1999), to support its refusal to entertain Orr’s argument. The court’s *726reliance on these cases is misplaced. In Berg, we refused to allow a plaintiff to claim for the first time on appeal that her employer perceived her as disabled. Berg, 169 F.3d at 1145. Under the ADA, “being regarded” as disabled — as opposed to actually being disabled — is a separate and distinct basis for liability. Compare 42 U.S.C. § 12102(2)(A) with § 12102(2)(C). Here, however, Orr’s argument has consistently been that he suffered from “a physical ... impairment that substantially limits one or more of [his] major life activities.” 42 U.S.C. § 12102(2)(A). While it is generally true that courts “do not consider arguments first raised on appeal,” Shelton, 285 F.3d at 643, this does not preclude us from considering Orr’s use of Lawson to support his argument that he suffers from a disability affecting one or more of life’s major activities.
The majority faults Orr for not raising the issue of “eating” as a limitation on one of his life’s major activities before the district court. In all due respect, this is a myopic treatment of the record before the district court. Orr’s entire case turned on the refusal of his employer "to allow'Orr to follow a dietary regimen. Orr’s argument focused on eating but eating is inextricably related to “working.”7 As the district court acknowledged, plaintiff claimed that he was substantially limited in his ability to work. This claim, however, was obviously based upon Orr’s ability to control his regulated diet and insulin injections. Thus, eating at defined times is directly related to his ability to work. Orr’s whole complaint as well as the evidentiary record relates to Wal-Mart’s refusal to allow Orr to eat during a lunch break. To suggest eating was not raised in the district court slights the entire evidentiary record. Orr’s claim before the district court is that if he is not allowed to follow his dietary regimen, he becomes completely disabled.
In Lawson, the Seventh Circuit discussed eating as one of life’s major activities, but did so in terms of Lawson’s ability to work: “Mr. Lawson’s diabetes has limited substantially his ability to work in a broad class of jobs.... We believe that a jury could conclude, from this evidence, that Mr. Lawson can show that a record exists indicating that his diabetes has limited substantially his ability to work.” 245 F.3d at 926-27. The court reasoned that the plaintiff “must always concern himself with the availability of food, the timing of when he eats, and the type and quantity of food he eats.” Id. at 924. Because the ADA “addresses substantial limitations on major life activities, not utter inabilities,” Bragdon v. Abbott, 524 U.S. 624, 641, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998) (cited in Lawson, 245 F.3d at 924), the Seventh Circuit went on to hold that “[t]he district court failed to consider the extent of the restrictions imposed by Mr. Lawson’s treatment regimen and the consequences of noncompliance with that regimen.” Lawson, 245 F.3d at 924. As explained in his brief, Orr has experienced “seizures, deteriorated vision, slurred speech, frequent urination, lack of concentration, awareness, coordination, strength, and consciousness, all of which can, and frequently does [sic], result in hospitalization.” These allegations are not what “could” happen, but are evidentiary proofs of what has happened when Orr is not allowed to follow a rigid discipline of eating at a scheduled time. This is verified through the record by Orr’s deposition and *727medical reports. I respectfully submit that we should follow Judge Ripple’s reasoning in Lawson, and hold Orr’s eating and working are fundamental, major life activities that are substantially limited due to his diabetes. A distinguished panel of Judge Cudahy and Judge Easterbrook joined Judge Ripple, and I find it unreasonable to ignore our sister circuit simply because of the mistaken belief that plaintiffs counsel failed to raise that argument in the district court.8 Furthermore, our review should be based on the full eviden-tiary record before us, not limited to cited' cases.
Orr also testified that when he was hired by Wal-Mart, he told them of his disability and Wal-Mart agreed that they would accommodate his eating habit at noon. The district court noted that this fact was denied by Wal-Mart, but held it was not material to the issue at hand. I respectfully disagree. I think these claims set forth genuine issues of material fact relating to the questions of disability and reasonable accommodation. See Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 949-50 (8th Cir.1999). These claims should therefore be submitted to the trier of fact.9
In conclusion, I submit that this is not an appropriate case for summary judgment by the court.
On this basis, I respectfully dissent.
. The majority suggests that under Sutton, the Supreme Court has not yet decided whether working is one of life’s major activities. It is much too late in the day in this circuit to hold that working may not be one of the major life activities under the ADA. See Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 954-55 (8th Cir.1999); Helfter v. United Parcel Service, 115 F.3d 613, 617 (8th Cir.1997). Such dicta is a poor crutch to deny Orr, or any other ADA litigant, his day in court.
. We note Lawson was decided barely two weeks before Orr’s response to the defendant’s motion for summary judgment was filed. It does not, therefore, seem so unusual for that decision to be cited for the first time in the district court’s Memorandum and Order granting summary judgment, issued some four months later.
. There is additional proof that Wal-Mart has now changed its policy and allows an uninterrupted lunch break at its single-pharmacist store in Chadron. This relates to the claim that Wal-Mart refused to make a reasonable accommodation and is further proof of a pre-textual reason for Orr’s discharge. These proofs address factual issues appropriate for a jury’s resolution.