REVISED
United States Court of Appeals,
Fifth Circuit.
No. 95-11062
Summary Calendar.
Marilie HILEMAN, Plaintiff-Appellee,
v.
CITY of DALLAS, TEXAS, Defendant-Appellant.
June 24, 1997.
Appeal from the United States District Court for the Northern
District of Texas.
Before SMITH, DUHÉ and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
The City of Dallas ("Dallas") appeals a denial of a judgment
as a matter of law ("j.m.l.") in its defense of a Rehabilitation
Act claim, 29 U.S.C. § 794(a) (West.Supp.1997), brought by Marilie
Hileman. We reverse and render j.m.l. for Dallas.
I.
Hileman worked as an electrical inspector for Dallas from
August 1984 until her resignation in March 1992. Although she was
required to work between the hours of 8:00 a.m. and 4:30 p.m., she
allegedly was unable to do so because of her chronic diarrhea,
caused in part by a spastic colon and apparently aggravated by
multiple sclerosis. Hileman's condition required that she develop
a set time every morning (between 7:30 a.m. and 8:00 a.m.) to
eliminate her bowels. Over time, Hileman's "natural occurring time
1
for bowel elimination" gradually became closer to 8:00 a.m.,
forcing her to arrive approximately 20 to 30 minutes late to work
on many mornings.1 Attempts to change the time of her bowel
elimination proved fruitless, and, notwithstanding the fact that
Hileman lived less than one mile from work, her tardiness
continued.
Hileman was warned first in April 1989 about her repeated
tardiness and poor attendance; she had been late or absent on
twelve different occasions during the first three months of the
year. She was warned again in January 1992 for being tardy seven
times in a twenty-one-day period and officially reprimanded in
February 1992 for reporting to work late each of the sixteen days
since her last warning.
Hileman sought an accommodation from the Reasonable
Accommodations Committee at the City of Dallas to permit her to
arrive at work thirty minutes late. Although the committee granted
her request, Sam Harting, Hileman's general supervisor, called her
into his office on March 11, 1992, to inform her that he disagreed
with the decision and would inquire into the department's appeal
rights. During this meeting, Hileman resigned from employment with
Dallas because she "couldn't take [it] anymore."
Hileman filed the instant action seeking relief under the
1
Her late arrival was not merely an inconvenience, but rather
compromised her ability to perform her job. Electrical inspectors
were required to receive phone calls between 8:00 a.m. and 8:30
a.m. from contractors regarding previous days' inspections or to
schedule an inspection. From 8:30 a.m. until 4:00 p.m. the
inspectors remained in the field conducting residential and
commercial property inspections.
2
Rehabilitation Act and alleging that she had been discriminated
against in the terms and conditions of her employment because she
is handicapped by multiple sclerosis.2 Following a jury trial, she
was awarded $30,000 for loss of economic benefits of past
employment and $1,800 for mental anguish and loss of enjoyment.
The court also awarded attorneys' fees in the amount of $21,230.17.
II.
We review de novo the denial of a j.m.l., viewing all evidence
in the light most favorable to the non-movant. See Burroughs v.
FFP Operating Partners, L.P., 28 F.3d 543, 546 (5th Cir.1994). We
will grant the motion only where the evidence at trial points so
strongly and overwhelmingly in the movant's favor that reasonable
jurors could not reach a contrary result. See id.
To qualify for relief under the Rehabilitation Act, a
plaintiff must prove that (1) he is an "individual with a
disability"; (2) who is "otherwise qualified"; (3) who worked for
a "program or activity receiving Federal financial assistance";
and (4) that he was discriminated against "solely by reason of her
or his disability." 29 U.S.C. § 794(a); Chandler v. City of
Dallas, 2 F.3d 1385, 1390 (5th Cir.1993). An individual with a
disability is any person who (1) has a physical or mental
impairment which "substantially limits one or more of such person's
major life activities"; (2) has a "record" of such an impairment;
or (3) is "regarded" as having such an impairment. 29 U.S.C. §
2
Hileman's original complaint alleged a litany of other
claims, including claims under § 1983 and state common law, but she
abandoned each either before or during trial.
3
706(8)(B) (West Supp.1997).
A "record" of impairment means that the claimant has a history
of, or has been misclassified as having, a mental or physical
impairment that "substantially limits one or more major life
activities." 45 C.F.R. § 84.3(j)(2)(iii) (1992).3 An individual
is "regarded" as having an impairment if he (1) has a physical or
mental impairment that does not substantially limit a major life
activity, but that is treated by a recipient as constituting such
a limitation; (2) has a physical or mental impairment that
substantially limits major life activities only as a result of the
attitudes of others toward such impairment; or (3) does not have
a qualifying physical or mental impairment (enumerated in 45 C.F.R.
§ 84.3(j)(2)(i) (1992)) but is treated as having such an
impairment. 45 C.F.R. § 84.3(j)(2)(iv) (1992).
A physical or mental impairment that affects the claimant's
ability to engage in a narrow range of jobs only or a particular
job alone does not "substantially limit" one or more major life
activities. See Chandler, 2 F.3d at 1392 (citing Jasany v. United
States Postal Serv., 755 F.2d 1244, 1249 n. 3 (6th Cir.1985));
accord Byrne v. Board of Educ., 979 F.2d 560, 565 (7th Cir.1992);
Elstner v. Southwestern Bell Tel. Co., 659 F.Supp. 1328, 1343
(S.D.Tex.1987), aff'd, 863 F.2d 881 (5th Cir.1988). The inability
to work at the specific job of one's choosing is not a substantial
3
The Supreme Court has instructed that the regulations
promulgated by the Department of Health and Human Services are an
important source of guidance on the meaning of § 706. See School
Bd. of Nassau County v. Arline, 480 U.S. 273, 279, 107 S.Ct. 1123,
1126-27, 94 L.Ed.2d 307 (1987).
4
limitation on a major life activity. See Byrne, 979 F.2d at 565
(citing Daley v. Koch, 892 F.2d 212, 215 (2d Cir.1989)). "The
impairment must substantially limit employment generally." Byrne,
979 F.2d at 565. Whether an impairment substantially limits a
plaintiff's employment potential depends upon the number and types
of jobs from which he is disqualified, the geographic area to which
he has reasonable access, and his employment qualifications. See
Chandler, 2 F.3d at 1392 (citing Jasany, 755 F.2d at 1249).
Hileman claims that she suffers from a disability—a spastic
colon aggravated by multiple sclerosis resulting in a loss of bowel
control—that substantially limits her major life activity of
working. She also contends that her disability substantially
limits her ability to read print over one page in length without
blurred vision and to hear effectively.
Notwithstanding these contentions, we do not find sufficient
evidence in the record to sustain Hileman's argument that she is an
"individual with a disability." In particular, there is
insufficient evidence demonstrating that her physical impairments
substantially limit one or more major life activities. Hileman
testified on cross-examination that, despite her impairments, she
was able to care for herself (with the exception of short,
temporary periods in 1990 and 1991), perform manual tasks, walk,
see, hear, speak, breathe, and work, all enumerated "major life
activities" under 45 C.F.R. § 84.3(j)(2)(ii). Dr. Robert Jacobson,
a colo-rectal surgeon who examined Hileman during the course of her
impairments, also testified that her impairments did not limit her
5
ability to engage in these major life activities and that he never
placed any restrictions or limitations on her activities.
The testimony of Dr. Allen Martin, Hileman's neurologist, is
in accord. He testified further that, in response to a request
from Dallas inquiring whether Hileman's work activities should be
limited owing to her impairments, he certified that she did not
have "a condition that would interfere at this time with driving a
car safely or performing her job duties as outlined in your
Classifications Specifications and Employee Job Duties and
Standards."
Not only does the record evidence dispel Hileman's contention
that her impairments substantially limited her ability to perform
her particular electrical inspector job with Dallas, but the record
is devoid of any evidence demonstrating that her impairments
substantially limit her ability to obtain work generally. An
impairment must substantially limit employment in general, not
merely the particular job that the plaintiff may wish to hold. See
Byrne, 979 F.2d at 565; accord Chandler, 2 F.3d at 1392-93.
Following her employment with Dallas, Hileman taught
electrician classes and testified further that "I continue to teach
every chance I get." When asked why she had not sought employment
as an electrical inspector similar to her Dallas job, Hileman
responded, "I anticipated similar problems that I had with the City
of Dallas. Nothing in the world could make me go through that
again. I would rather starve to death."
That Hileman "would rather starve to death"—or, as evinced by
6
her actions in the instant case, drink from the well of a $31,800
jury award—than seek employment in a similar capacity to that which
she had with Dallas is insufficient to demonstrate that her
impairment substantially limits her ability to obtain employment
generally. We refuse to construe the Rehabilitation Act as a
handout to those who are in fact capable of working in
substantially similar jobs (or, as did Hileman, who choose not to
determine whether they are able to obtain alternate employment),
but who choose not to pursue such employment because they
"anticipate[ ] similar problems."
Such inaction alone is not adequate proof of a substantial
limitation on employment opportunities generally. It is Hileman's
burden to prove that there are no other satisfactory employment
opportunities available to her that could accommodate her bowel
movement schedule (i.e., jobs that begin at 8:30 a.m. instead of
8:00 a.m.), and she has failed to carry this burden.4
4
To the extent that Hileman contends that her vision problems
also substantially limit her major life activity of working, we
reject her argument for two reasons. First, there is no record
evidence indicating that this impairment affects her employment
opportunities as an electrical inspector or otherwise. Second,
because the extent of her blurred vision is not developed in the
record (save her own testimony to that effect), we are unable to
determine whether her condition is in fact a disability. See
Chandler, 2 F.3d at 1390 (noting that a person is not handicapped
if his vision can be corrected to 20/200).
To the extent that Hileman suggests that her vision
problems substantially limit her major life activity of
reading, we similarly reject this argument. First, she has
directed us to no authority suggesting that reading is in fact
a "major life activity." See 45 C.F.R. §84.3 (j)(2)(ii)
(including "seeing," but not "reading," among the list of
enumerated major life activities). Second, she states only
that her blurred vision prevents her from reading more than
7
Because Hileman's impairments do not limit substantially one
or more major life activities, she is not an "individual with a
disability" under subsection (i) or (ii) of 29 U.S.C. § 706(8)(B),
as incorporated by reference into 29 U.S.C. § 794(a). Her brief on
appeal is devoid of any argument regarding whether she may be
considered an "individual with a disability" because she is
"regarded" as having such an impairment under subsection (iii) of
§ 706(8)(B); the argument is therefore deemed waived. See FED.
R.APP. P. 28(a)(6); Cavallini v. State Farm Mut. Auto. Ins. Co.,
44 F.3d 256, 260 n. 9 (5th Cir.1995) (holding that "failure to
provide any legal or factual analysis of an issue results in
waiver"). Even assuming arguendo that Hileman has preserved this
argument, we do not find sufficient record evidence demonstrating
that she was "regarded" as having an impairment.
REVERSED and RENDERED.
one page at a time without taking a break. This description
of her problem alone provides little upon which to evaluate
whether the impairment in fact substantially limits her
ability to read.
8