IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-10286
Summary Calendar
OLLIE DAILEY
Plaintiff-Appellant,
v.
VOUGHT AIRCRAFT CO.
Defendant-Appellee.
Appeal from the United States District Court
For the Northern District of Texas
(3:94-CV-1214-X)
October 18, 1996
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Factual Background
Plaintiff Dailey has worked as a class B machinist for the
defendant, from time to time, for a number of years. At various
times he has been laid off and recalled, depending on defendant’s
work requirements and order volume. At the time of the district
court’s decision, he was working as a class B machinist with no
working restrictions due to his alleged disability. Plaintiff’s
job as a machinist requires him to work on large machines and to
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
lift large cutting pieces into place. Some of these machines are
equipped with hoists which help to lift the loads into place.
In January, 1990, plaintiff suffered an injury in an on-the-
job accident. It is this injury that forms the basis of the
plaintiff’s current action. Plaintiff claims that his injury
resulted in a cognizable disability under the Americans with
Disabilities Act (the “ADA”). As a result of this injury, Dailey’s
doctor signed various letters placing him on various work
restrictions concerning the amount of weight he could lift. These
restrictions varied frequently, hitting virtually every five-pound
increment between five pounds and fifty pounds at some point in
time, many of them more than once. On several occasions, Dailey’s
doctor stated that Dailey was unable to work at all, and at least
once stated that Dailey would never be able to return to his job.
Defendant was transferred back and forth from different shifts and
was eventually laid off. Plaintiff filed suit when he was not
returned to work as quickly as he thought he should be, alleging
racial discrimination, disability discrimination, and retaliation.
The ensuing ligitation has resulted in three cases against Vought
and its predecessors for alleged violations of various employment-
related statutes over the past several years. The first, Dailey v.
LTV Aerospace & Defense Co., Appeal No. 95-10156 (“Dailey I”),
alleged Vought discriminated against Dailey on account of race and
disability and then retaliated against him because he complained,
2
intentionally inflicting emotional distress. Dailey also sought to
recover under the Civil Rights Act of 1991, 42 U.S.C. § 1981a (the
“‘91 Act”). This court has already affirmed the district court’s
resolution of Dailey I,1 including:
C dismissal of Dailey’s claims arising under the ‘91 Act
because Dailey’s factual allegations occurred prior to
the Act’s passage;
C summary judgment for Vought on Dailey’s claim for
intentional infliction of emotional distress;
C summary judgment for Vought on his Rehabilitation Act
claims;
C dismissal of Dailey’s ADA claim in order to allow
completion of the administrative process;
C removal of the case from the jury docket; and,
C after a bench trial on the merits, final judgment for
Vought.
Dailey’s second action (“Dailey II”), filed in February of
1994, alleged that his layoff was the result of race discrimination
and retaliation in violation of Title VII. Dailey’s third action
(“Dailey III”) asserted that Vought violated the ADA, Title VII,
and § 1981 when it failed to return Dailey to work in October of
1992. Dailey II and III were consolidated, and the district court
ruled on those cases (except for the ADA claim) finding that Dailey
presented no more evidence of discrimination in Dailey II and III
than he did in Dailey I, dismissing Dailey’s Title VII claim
challenging his inability to return to work because it had been
disposed of in Dailey I, and dismissing Dailey’s § 1981 claim
because it could have been asserted in Dailey I. The district
1
See Dailey v. International Union, 82 F.3d 415 (5th Cir.
1996).
3
court also imposed Rule 11 sanctions both for failure to conduct a
reasonable inquiry and for asserting frivolous claims. This court
affirmed in Appeal No. 95-10437.2
On January 6th, 1995, the trial court issued findings of fact
and conclusions of law relating to Dailey I, II and III on the
issues previously tried at the bench trial. The factual findings
included:
C Vought honored Dailey’s restrictions, as issued by
Dailey’s doctor, by allowing Dailey to choose which of
Vought’s machines to use for his work;
C the restrictions issued by Dailey’s doctor changed often
and repeatedly, from 5 to 50 pound lifting restrictions
and back (and every increment in between);
C at various times, the restrictions issued by Dailey’s
doctor have stated that he was never going to be capable
of working again;
C Dailey’s doctor was providing recommendations for Dailey
on the doctor’s letterhead, based on Dailey’s subjective
input and without medical diagnosis, for the sole purpose
of giving the documents to Vought for Dailey’s own
purposes (they were “a sham,” reducing to writing
whatever Dailey requested); and,
C in September, 1992, Dailey was awarded workers’
compensation for his injuries by a jury.
Dailey apparently never appealed these findings of fact or
conclusions of law.
While this court was considering Dailey’s consolidated Dailey
II and Dailey III appeals, his ADA claim was still before the
district court. The district court granted summary judgment to
Vought on that claim on March 11, 1996, on the separate grounds
2
This case was consolidated with Appeal No. 95-10156. See
Dailey v. Vought Aircraft, 82 F.3d 415 (5th Cir. 1996). This court
also denied Dailey’s request for panel and en banc reconsideration.
4
that Dailey was unable to establish a prima facie case of
discrimination and that he presented no evidence to overcome
Vought’s legitimate non-discriminatory reason for the action it
took. Undaunted by his previous record of success on his
discrimination claims in this Court, Dailey now appeals. We review
de novo.
Discussion
The parties clash over whether Dailey is bound by the district
court’s factual findings in Dailey I. We need not decide that
issue here. The previous findings aside, we find no error in the
grant of summary judgment here.
On this record, Dailey is not an individual with a disability.
The ADA defines a disability to be:
(A) a physical or mental impairment that substantially limits
one or more of the major life activities of [an] individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2). Dailey claims to be in the first and third
categories, alternatively. The statute itself defines neither
“substantially limits” nor “major life activities.” But
regulations promulgated under the ADA define both. “Major life
activities” is defined as “functions such as caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.” 29 C.F.R. § 1630.2(I). We have
previously noted that this list is not exclusive. “Other life
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activities could include lifting, reaching, sitting, or standing.”
Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 n.7 (5th Cir.
1995).
For his claim of disability under § 12102(A), Dailey maintains
only that he was substantially limited in his ability to perform
the major life activities of lifting and working. In the
alternative, Dailey claims he was regarded as having a disability
which substantially limited his major life activity of working. We
analyze each of the three contentions in turn.
A.
Dailey claims that he was substantially limited in the major
life activity of lifting. To determine whether a person is
substantially limited in a major life activity other than working,
we look to whether the person can perform the life activity in the
normal activities of daily living. Ray v. Glidden Co., 85 F.3d
227, 229 (5th Cir. 1996); Dutcher, 53 F.3d at 726. There is no
evidence that Dailey cannot perform his normal daily activities of
living. Plaintiff would have us infer a disability from his
doctor’s lifting restrictions. All the evidence before us at this
time suggests, and Dailey now maintains, that he can now lift as
long as he avoids loads over 20 pounds. Dutcher and Ray make clear
that the inability to lift discrete loads of heavy weight does not
by itself render a person substantially limited in a major life
activity. Ray, 85 F.3d at 229; Dutcher, 53 F.3d at 726.
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B.
Dailey also claims to be substantially limited in the major
life activity of working. For the major life activity of working,
the test is whether Dailey is “significantly restricted in [his]
ability to perform 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.” Dutcher, 53 F.3d at
726. “The inability to perform a single, particular job does not
constitute a substantial limitation in the major life activity of
working.” Id. To meet this test, Dailey speculates that his
lifting restrictions will interfere with his ability to perform
heavy labor positions and that a reasonable jury could conclude or
infer that his disability substantially limits the major life
activity of working. Dailey does not explain why his job as
machinist ought to be compared to all “heavy labor” jobs, nor why
he could not perform machinist jobs working with smaller bits or on
smaller pieces. He has presented no evidence whatever of a class
of jobs from which he is excluded. He has presented no evidence of
any other job from which he actually has been excluded due to this
“disability.” The party opposing summary judgment must offer
evidence, not speculation as to what a jury might or might not
infer. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The
district court correctly granted summary judgment on this
definition of a disability as well.
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C.
Finally, Dailey’s claim that he is disabled within the meaning
of the ADA depends on whether Vought perceived him to have a
disability.3 Vought maintains that, at the time Vought did not
return Dailey to work as quickly as he wanted, Vought was
experiencing a reduction in the amount of work available to
machinists in Dailey’s classification and with Dailey’s lifting
restrictions. It is undisputed that Dailey gave Vought the lifting
restrictions, and that they differed among widely varying weights
at various times. Dailey has presented no evidence, other than
inferences based on his already twice-dismissed racial
discrimination and retaliation claims, that Vought did not have a
downturn of work. In addition, the evidence before the court
strongly suggests that, at several times, Dailey’s physician said
he was unable to work at all, and if at all with lifting
restrictions that applied to his job. Dailey has offered no
evidence that Vought wrongly perceived him as having a disability.
The district court correctly granted summary judgment on this
definition of disability as well.
AFFIRMED.
3
Dailey did not specifically plead that Vought perceived him
as having a disability. Generally, he has contended that he had a
disability under § 12102(2)(A) rather than that he was perceived as
having a disability under (C). The parties clash over whether
Dailey’s failure to plead this contention specifically precludes
the argument now. We do not decide that issue here as, whether or
not Dailey’s pleadings were proper, he offered insufficient
evidence to preclude summary judgment on the issue.
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