IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-30335
Summary Calendar
_____________________
HAROLD JOHN CLOUSE,
Plaintiff-Appellant,
versus
BOISE CASCADE, INC. d/b/a
Boise Cascade DeRidder Paper Mill, Et Al.,
Defendants,
BOISE CASCADE CORP.,
Defendant-Appellee.
_______________________________________________________
Appeal from the United States District Court for
the Western District of Louisiana
(95-CV-1415)
_______________________________________________________
October 30, 1997
Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Harold John Clouse appeals an adverse summary judgment in
his suit against his employer, Boise Cascade Corporation, for
discrimination under the Americans with Disabilities Act (ADA),1
*
Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
1
42 U.S.C. §§ 12101-12213 (1995).
the Louisiana Civil Rights for Handicapped Persons Act,2 and the
Louisiana Human Rights Commission Act.3 We affirm.
Background
Harold Clouse is a five-step mechanic at Boise Cascade’s
paper mill in DeRidder, Louisiana. Five-step mechanics are
responsible for the maintenance and repair of the machinery at
the mill. The position includes heavy physical labor, such as
changing out conveyors, repairing pumps and replacing refiner
plates.
In 1992, Clouse had surgery to alleviate a back problem.
After a few months, he returned to work under restrictions and
was steadily improving to a point where he could perform his
regular duties. However, he was then involved in a car wreck and
re-injured his back. Clouse again was off work for a number of
months. He returned to work under restrictions, but this time
his condition did not improve as quickly. In December 1994,
Clouse underwent a functional capacity evaluation to determine
his physical capabilities. As a result of this evaluation, his
doctor restricted him from lifting more than fifteen pounds from
floor to knuckle height.
2
LA. REV. STAT. ANN. §§ 46:2251-2256 (1997).
3
LA. REV. STAT. ANN. §§ 51:2231-2265 (1997).
2
In January 1995, Clouse presented these restrictions to
Boise. The management of the mill determined that the
restrictions prevented Clouse from performing the job of a five-
step mechanic. After a meeting, Boise placed Clouse on inactive
status, retaining him as an employee without pay. Clouse
provided Boise with a reevaluation in March 1996, at which point
the restrictions were modified to allow him to lift up to fifty
pounds from floor to knuckle height. Boise returned Clouse to
work in an unlimited capacity in his job as a five-step mechanic.
Clouse filed suit in August 1995, claiming that Boise
Cascade Corporation had violated the ADA and Louisiana disability
discrimination laws when it placed him on unpaid leave of
absence. After several months of discovery, Boise moved for
summary judgment on the grounds that Clouse did not have the
requisite “disability” to be protected by the ADA. The trial
court granted Boise’s motion, holding that Clouse failed to prove
he had a disability under any definition of the term. Following
dismissal of the federal claims, Boise moved for summary judgment
on Clouse’s state law disability claims. The court granted this
motion, reasoning that Louisiana’s disability discrimination laws
contained definitions of disability virtually identical to the
ADA. The court entered judgment dismissing all of Clouse’s
claims with prejudice.
3
DISCUSSION
I. Standard of Review
We review the district court’s grant of summary judgment as
a matter of law de novo, employing the same criteria used in that
court.4 Summary judgment is proper only if the evidence shows
that “there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as matter of law.”5
II. ADA claims
“As a threshold requirement in an ADA claim, the plaintiff
must, of course, establish that he has a disability.”6 The ADA
defines “disability” three ways: (1) having an impairment that
substantially limits one or more of the major life activities;
(2) a record of such impairment; or (3) being regarded as having
such an impairment.7
There is no dispute as to Clouse’s physical capabilities in
January 1995. He could, during an eight hour day, walk for six
4
Rogers v. International Marine Terminals, Inc., 87 F.3d 755, 758 (5th
Cir. 1996).
5
Fed. R. Civ. P. 56(c) (1997).
6
Rogers, 87 F.3d at 758.
7
42 U.S.C. § 12102(2) (1995).
4
to eight hours, sit for one to three hours and drive for one to
three hours. He could also use his hands for repetitive single
grasping, pushing and pulling and fine manipulation. He could
bend frequently and squat and climb occasionally. He could lift
fifteen pounds from floor to knuckle height and up to fifty hands
above knuckle height. The issue is whether the lifting
restriction substantially limited a major life activity.
The ADA does not define “substantially limit” or “major life
activity.” The Equal Employment Opportunity Commission
regulations define “major life activities” as “functions such as
caring for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working.”8 The
regulations define “substantially limits” as:
(i) Unable to perform a major life activity
that the average person in the general
population can perform; or
(ii) Significantly restricted as to the
condition, manner or duration under which an
individual can perform a particular major
life activity as compared to the condition,
manner, or duration under which the average
person in the general population can perform
that same major life activity.9
In his affidavit opposing summary judgment, Clouse stated
that his back impairment limited his work capabilities, his
activities with his grandchildren, and “other activities that
8
29 C.F.R. § 1630.2(i) (1996).
9
29 C.F.R. § 1630.2(j)(1) (1996).
5
required activity outside his limitations.” Clouse’s reference
to “other activities” does not constitute specific facts
sufficient to demonstrate a genuine issue for trial.10 Playing
with one’s grandchildren is not a major life activity in the same
category as walking or speaking; an inability to lift the
children up from the ground does not constitute a disability.
Thus, the only potential major life activity that may have been
substantially limited was Clouse’s work capabilities.
The EEOC regulations define “substantially limits” with
regards to working as:
significantly restricted in the 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. The
inability to perform a single, particular job
does not constitute a substantial limitation
in the major life activity of working.11
The following factors should be considered: (1) the nature and
severity of the impairment; (2) its duration; and (3) the
permanent or long term impact of the impairment.12 Additionally,
with regards to working, the geographical area is relevant.13
An inability to perform a discrete task, such as lifting
heavy objects, does not constitute a “disability.” In Aucutt v.
10
See Fed. R. Civ. P. 56(e) (1997).
11
29 C.F.R. § 1630.2(j)(3) (1996).
12
29 C.F.R. § 1630.2(j)(2) (1996).
13
29 C.F.R. § 1630.2(j)(3)(ii) (1996).
6
Six Flags Over Mid-America, Inc., the Eighth Circuit found no
impact on a plaintiff’s major life activities where he was
subject to a 25 pound lifting restriction.14 In Ray v. Glidden
Co., the plaintiff was restricted from lifting 44-56 pound
containers continuously, yet this Court found no impact on a
major life activity.15 Similarly, in Dutcher v. Ingalls
Shipbuilding, this Court held that the plaintiff’s inability to
climb did not constitute a disability although it restricted her
ability to perform specific jobs as a welder.16
Clouse offered no evidence regarding the jobs available in
his geographic area or to people with his skills so as to
distinguish his limitation from these cases. For a little over a
year, he was restricted from lifting medium to heavy objects from
floor to knuckle height. He was not restricted in lifting nor
carrying items above knuckle height. We hold that Clouse’s
limited restriction did not substantially limit a major life
activity.
Clouse also contends that he has a record of impairment, the
second definition of disability under the statute. However, just
as there was no evidence that Clouse suffered from an impairment
that substantially limited a major life activity, he does not
14
Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1319 (8th
Cir. 1996).
15
Ray v. Glidden Co., 85 F.3d 227, 229 (5th Cir. 1996).
16
Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995).
7
have a record of “such impairment.”17 There is no evidence that
Clouse’s medical history disqualified him from a broad class of
jobs. Clouse has worked for Boise since 1970, and continues to
do so today. Clouse cannot conclude that his employer
discriminated against him simply because his medical records
reveal past medical problems.
Finally, Clouse contends that Boise “regarded” him as having
the requisite ADA impairment, under § 12102(2)(C). An employer
violates the ADA if the employee has an impairment which is not
substantially limiting, but which the employer perceives as
constituting a substantially limiting impairment.18 An
assessment of an employee’s ability to perform a job, based on
actual medical conditions, does not constitute regarding the
employee as disabled.19 The record indicates that Boise believed
that Clouse was unable to perform the five-step mechanic’s job
based on his inability to lift heavy objects from the floor.
Nothing in the record suggests that Boise believed that Clouse’s
condition substantially limited his ability to perform a whole
class of jobs.
III. State law claims
17
42 U.S.C. § 12102 (1995).
18
Bridges v. City of Bossier, 92 F.3d 329, 332 (5th Cir. 1996), cert.
denied, 117 S.Ct. 770 (1997).
19
See Aucutt, 85 F.3d at 1320.
8
Clouse also brought claims under the Civil Rights for
Handicapped Persons Act20 and the Louisiana Human Rights
Commission Act.21
The Louisiana Supreme Court has not determined what
constitutes a disability under the state discrimination laws.
Accordingly, the federal court must determine, to the best of its
ability, what the Louisiana Supreme Court would decide if faced
with the issue.22 The decisions of lower state courts should be
given some weight, but they are not controlling.23
In granting summary judgment for Boise, the district court
noted the “remarkably similar” definitions of “disability,”
“impairment,” and “major life activities” in the two state
statutes, when compared with the ADA. In other areas of
employment discrimination law, the Louisiana courts have looked
to the federal case law to determine the meaning of terms in
state statutes which parallel terms in federal statutes.24
Three Louisiana appellate courts have addressed the issue of
what constitutes a disability under the Civil Rights for
Handicapped Persons Act. In Kraemer v. Santa Fe Offshore
20
LA. REV. STAT. ANN. §§ 46:2251-46:2256 (1997).
21
LA. REV. STAT. ANN. §§ 51:2231-2265 (1997).
22
Rogers v. Corrosion Products, Inc., 42 F.3d 292, 295 (5th Cir.),
cert. denied, 115 S.Ct. 2614 (1995).
23
Id.
24
See, e.g., Plummer v. Marriott Corp., 654 So.2d 843, 848 (La. App. 4
Cir.), writ denied, 660 So.2d 460 (La. 1995).
9
Construction Co., the plaintiff was a welder who, because of
allergies, could work onshore, but not offshore.25 Due to the
restriction, he was discharged.26 The court found that no major
life activities were curtailed due to plaintiff’s inability to
work offshore.27
In Lege v. N.F. McCall Crews, Inc., a boat captain was
discharged by his employer because an abdominal virus required
him to “take it easy at times,” and to stop and catch his breath
after moving up and down the stairs.28 The court found that the
plaintiff did not have a health condition which substantially
limited one of life’s major activities because he eventually
found employment with another company as captain and did not
consider himself handicapped.29 In holding that the jury
correctly found that N.F. McCall Crews did not regard the
plaintiff as handicapped under the statute, the court stated,
“[t]his statute does not protect a person who is unsuited for one
position for one employer.”30
25
Kraemer v. Santa Fe Offshore Constr. Co., 579 So.2d 488 (La. App.
4th Cir. 1991).
26
Id.
27
Id. at 490.
28
Lege v. N.F. McCall Crews, Inc., 625 So.2d 185 (La. App. 3d Cir.),
writ denied, 627 So.2d 638 (La. 1993).
29
Id. at 187.
30
Id. at 188.
10
In Turner v. City of Monroe, the plaintiff underwent back
surgery and was cleared for work as a signal technician after a
full recovery, but the defendant refused to allow him to return
to work.31 The trial court found that the plaintiff had no
impairment which would affect his ability to work, but that his
employer regarded him as being impaired.32 Affirming the lower
court’s decision, the Louisiana appellate court noted that the
definitions in the Louisiana statute mirror those in the federal
law.33 These cases indicate that the Louisiana Supreme Court
would interpret disability in the same manner as this Court has.
We have found no Louisiana cases addressing disability
claims under the Louisiana Commission on Human Rights Act. The
statute’s definitions track the ADA language virtually
verbatim.34 Moreover, the stated purpose and intent of the Act
is to execute in Louisiana the policies embodied in the several
federal civil rights acts.35 A secondary purpose of the Act is
to justify deferral of cases by the federal Equal Employment
Opportunity Commission, U.S. Labor Department, and the U.S.
31
Turner v. City of Monroe, 634 So.2d 981 (La. App. 2d Cir. 1994).
32
Id. at 983.
33
Id. at 984.
34
LA. REV. STAT. ANN. § 51:2232(11)(a) (1997).
35
LA. REV. STAT. ANN. § 51:2231 (1997).
11
Justice Department.36 Whether the Louisiana Supreme Court
follows federal law or state case law under the closely related
Louisiana Handicapped Persons Act, we reach the same result:
plaintiff does not have a disability under the statute.
AFFIRM
36
Id.
12