United States Court of Appeals
Fifth Circuit
F I L E D
April 1, 2003
In the Charles R. Fulbruge III
Clerk
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-30155
_______________
WILLIAM R. WALDRIP,
Plaintiff-Appellant,
VERSUS
GENERAL ELECTRIC COMPANY,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
_________________________
Before GARWOOD, SMITH, and BARKSDALE, Act (“ADA”), 42 U.S.C. § 12101 et seq. The
Circuit Judges. district court granted summary judgment to
GE, concluding that Waldrip does not have a
JERRY E. SMITH, Circuit Judge: “disability” as defined by the ADA. Finding no
error, we affirm.
William Waldrip sued his former employer,
the General Electric Company (“GE”), for a
violation of the Americans with Disabilities
I. defenses.
Waldrip worked in various jobs at a GE
manufacturing plant from 1973 to 1999. The A.
plant contains heavy industrial machinery The ADA defines “disability” as, “with re-
whose operators must remain alert. Beginning spect to an individual[,] . . . a physical . . .
in 1984, his job required him to operate heavy impairment that substantially limits one or
machinery. more major life activities of such individual.”
42 U.S.C. § 12102(2)(A). There is a three-
In 1996, Waldrip was diagnosed with part test for applying this definition. Bragdon
chronic pancreatitis, which occasionally re- v. Abbott, 524 U.S. 624, 631 (1998). We
quired him to miss a few days of work. He must determine first whether Waldrip has an
also began to take pain medication for his con- “impairment,” next whether the activity on
dition. These prescription drugs are central which he relies is a “major life activity,” and, if
nervous system depressants and come with a so, whether his impairment “substantially lim-
warning not to operate heavy machinery while its” that major life activity. Id.
under their influence.
“[T]hese terms need to be interpreted strict-
GE learned of Waldrip’s medication in ly to create a demanding standard for qualify-
1999 when Waldrip mentioned it to the com- ing as disabled.” Toyota Motor Mfg., Ky., Inc.
pany nurse. She asked him to bring his pre- v. Williams, 534 U.S. 184, 197 (2002). In
scription bottles to work. The company doc- enacting the ADA, Congress expressly esti-
tor observed the warnings on the bottles and mated that “some 43,000,000 Americans have
told Waldrip he could not work while under one or more physical or mental disabilities.”
the influence of these medications; Waldrip 42 U.S.C. § 12101(a)(1). When one compares
claims company officials then fired him and re- this estimate to the countless aches and pains
moved him from the plant. According to GE, from which most of us unhappily suffer, one
however, they told him he should switch pain can easily see that a lenient interpretation
medications or refrain from using the med- would expand the class of disabled persons far
ication the evening before or during the work- beyond Congress’s expectation. Toyota, 534
day. Waldrip did not return to work and sued U.S. at 197; Sutton v. United Air Lines, Inc.,
for discriminatory discharge under the ADA, 527 U.S. 471, 487 (1999). We therefore con-
42 U.S.C. § 12112(a). duct a rigorous and carefully individualized
inquiry into Waldrip’s claimed disability to ful-
II. fill our “statutory obligation to determine the
“As a threshold requirement in an ADA existence of disabilities on a case-by-case
claim, the plaintiff must, of course, establish basis.” Albertson’s, Inc. v. Kirkingburg, 527
that he has a disability.” Rogers v. Int’l Ma- U.S. 555, 566 (1999).
rine Terminals, Inc., 87 F.3d 755, 758 (5th
Cir. 1996). The parties dispute whether Wal- 1.
drip has a “disability,” so we choose to address Waldrip claims his chronic pancreatitis sub-
that question first. Because we conclude that stantially limits his ability to eat and digest.
Waldrip does not have a “disability” as defined Chronic pancreatitis is a “physical impair-
by the ADA, we need not consider GE’s other ment,” is often painful, and can cause bleeding,
2
pancreatic necrosis (tissue death), or even pan- major life activities.2 Third, three other cir-
creatic cancer. In Holtzclaw v. DSC Commu- cuits have recognized eating as a major life ac-
nications Corp., 255 F.3d 254, 258 (5th Cir. tivity, and none has decided to the contrary.3
2001), we treated chronic pancreatitis as an Fourth, the EEOC’s regulations recognize
impairment. It also fits with the definition of many less important activities, for example,
“physical impairment” adopted by the Equal performing manual tasks and speaking, as ma-
Employment Opportunity Commission jor life activities. 29 C.F.R. § 1630.2(i).
(“EEOC”): “Any physiological . . . condition
. . . affecting . . . digestive . . . and endocrine 3.
[systems].” 29 C.F.R. § 1630.2(h)(1).1 GE Waldrip, however, offers no evidence that
more or less concedes this point by not argu- his chronic pancreatitis “substantially limits”
ing otherwise. the major life act ivity of eating. The sub-
stantial-limit requirement is the linchpin of
2. § 12102(2)(A). Without it, the ADA would
We also agree that eating is a “major life cover any minor impairment that might tangen-
activity.” First, eating satisfies the Supreme tially affect major life activities such as breath-
Court’s general standard for a “major life ac- ing, eating, and walking. For this reason, an
tivity,” namely, “those activities that are of impairment must not just limit or affect, but
central importance to daily life,” Toyota, 534 must substantially limit a major life activity.
U.S. at 197, and activities that “are central to Albertson’s, 527 U.S. at 565 (contrasting
the life process itself,” Bragdon, 524 U.S. at “mere difference” with a “significant restric-
638. By any measure, eating is of central im- tion”). The effects of an impairment must be
portance to daily life and the life process. severe to qualify as a disability under the
ADA.4
Second, eating is more important to life
than are many of the activities previously rec-
ognized by the Supreme Court or this court as 2
Bragdon, 524 U.S. at 637-39 (reproduction);
Ivy v. Jones, 192 F.3d 514, 516 (5th Cir. 1999)
(hearing); Talk v. Delta Airlines, Inc., 165 F.3d
1021, 1025 (5th Cir. 1999) (walking); Still v.
1
We cite the EEOC regulations as persuasive Freeport-McMoran, Inc., 120 F.3d 50, 52 (5th
authority, not for Chevron deference. We early on Cir. 1997) (seeing).
stated, and often have repeated, that the regulations
“provide significant guidance.” Dutcher v. Ingalls 3
Lawson v. CSX Transp., Inc., 245 F.3d 916,
Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995). 923-24 (7th Cir. 2001); Forest City Daly Hous.,
Yet, we have never given the regulations Chevron Inc. v. Town of N. Hempstead, 175 F.3d 144, 151
deference, and recent decisions of the Supreme (2d Cir. 1999); Land v. Baptist Med. Ctr., 164
Court strongly suggest that the regulations are not F.3d 423, 424 (8th Cir. 1999).
entitled to such deference, because Congress dele-
4
gated the authority to implement Title I of the See Toyota, 534 U.S. at 197 (“The word ‘sub-
ADA, which regulates employment, to the EEOC, stantial’ thus clearly precludes impairments that in-
42 U.S.C. § 12116, but Title I does not include terfere in only a minor way with the performance
§ 12102. See Toyota, 534 U.S. at 194; Albert- of [the major life activity of] manual tasks from
son’s, 527 U.S. at 563 n.10; Sutton, 527 U.S. qualifying as disabilities.”); id. at 198 (holding that
at 478-80. (continued...)
3
“The particularized inquiry mandated by the Moreover, a plaintiff must prove a substan-
ADA centers on substantial limitation of major tial limit with specific evidence that his partic-
life activities, not mere impairment.” Ivy, 192 ular impairment substantially limits his partic-
F.3d at 516. In Burch v. Coca-Cola Co., 119 ular major life activity. “[T]he ADA requires
F.3d 305 (5th Cir. 1997), for example, this those ‘claiming the Act’s protection to prove
court held that alcoholism is not a disability, a disability by offering evidence that the extent
despite its effects on walking, talking, thinking, of the limitation caused by their impairment in
and sleeping, because these effects, though se- terms of their own experience is substantial.’”
rious, are merely temporary. “Permanency, Toyota, 534 U.S. at 198 (quoting Albertson’s,
not frequency, is the touchstone of a substan- 527 U.S. at 567) (alterations omitted). A
tially limiting impairment.” Id. at 316. Like- plaintiff cannot survive summary judgment by
wise, in Ellison v. Software Spectrum, Inc., 85 showing that an impairment like his own could
F.3d 187 (5th Cir. 1996), we held that cancer substantially limit a major life activity of an-
and its treatment did not substantially limit the other person or in his own future. Rather, he
major life activity of work. “Obviously, [plain- must show that his impairment has actually and
tiff’s] ability to work was affected; but . . . far substantially limited the major life activity on
more is required to trigger coverage under which he relies.
§ 12102(2)(A).” Id. at 191 (emphasis added).
Many other cases follow this lead and hold For example, in Bragdon, 524 U.S. at 631,
that the effects of an impairment, even some the Court held that the respondent’s HIV sub-
serious ones, do not rise to a substantial limit.5 stantially limited her major life activity of re-
production. In Blanks, by contrast, we held
that the plaintiff’s HIV did not substantially
(...continued)
limit his major life activity of reproduction, be-
“to be substantially limited in performing manual
cause he had failed to allege any substantial
tasks, an individual must have an impairment that
prevents or severely restricts the individual from
limit and, to the contrary, admitted that his
doing activities that are of central importance to wife had been sterilized. Blanks, 310 F.3d at
most people’s daily lives”); id. at 196 (“‘Sub- 401. In short, neither the Supreme Court nor
stantially’ in the phrase ‘substantially limits’ sug- this court has recognized the concept of a per
gests ‘considerable’ or ‘to a large degree.’”); Sut- se disability under the ADA, no matter how
ton, 527 U.S. at 491 (same). serious the impairment; the plaintiff still must
adduce evidence of an impairment that has ac-
5
See, e.g., Blanks v. Southwestern Bell Com- tually and substantially limited the major life
munications, Inc., 310 F.3d 398, 401 (5th Cir. activity on which he relies.
2002) (holding HIV not a substantial limit on ma-
jor life activity of reproduction); Dupre v. Charter
Behavioral Health Sys., Inc., 242 F.3d 610, 614
(5th Cir. 2001) (holding back injury not a sub-
stantial limit on major life activities of sitting, (...continued)
standing, or working); Talk, 165 F.3d at 1025 Robinson v. Global Marine Drilling Co., 101 F.3d
(holding deformed leg not a substantial limit on 35, 37 (5th Cir. 1996) (holding asbestosis not a
major life activities of walking or working); Still, substantial limit on major life activity of breath-
120 F.3d at 52 (holding monocular vision not a ing); Dutcher, 53 F.3d at 727 (holding permanent
substantial limit on major life activity of working); arm injury not a substantial limit on major life ac-
(continued...) tivity of working).
4
Waldrip does not begin to satisfy this ex- ate a genuine issue of material fact that GE
acting standard. He just asserts his conclusion misperceived his impairment as substantially
that “pancreatitis is a serious condition that limiting. See Deas v. River West, L.P., 152
substantially limits his major life function of F.3d 471, 482 (5th Cir. 1998). To the con-
eating and digesting.” Waldrip’s doctor testi- trary, he routinely took sick leave, without ob-
fied that, at most, he occasionally must miss a jection from GE, when his chronic pancreatitis
few days of work when his chronic pancreatitis became especially painful. GE became wor-
flares up. This testimony does not demon- ried only once it learned that Waldrip was po-
strate that Waldrip’s chronic pancreatitis sub- tentially taking central nervous system depres-
stantially limits his ability to eat; even if it did, sants while operating heavy machinery.
such temporary effects do not amount to a
substantial limit. Burch, 119 F.3d at 316. Waldrip argues finally that GE paid him dis-
Based on this evidence, no reasonable jury ability benefits and therefore must have regard-
could conclude that Waldrip’s chronic pancre- ed him as disabled. Yet, GE paid those bene-
atitis “substantially limits” his ability to eat or, fits only after Waldrip alleges he was fired.
therefore, that he has a “disability” under Thus, it could not have regarded him as dis-
§ 12102(2)(A). abled on this basis before allegedly firing him.
Moreover, in his application for benefits, Wal-
B. drip denied being disabled.
Even if a plaintiff does not have an “impair-
ment that substantially limits one or more ma- The summary judgment is AFFIRMED.
jor life activities” as defined by § 12102(2)(A),
he may claim the protection of the ADA if he
is “regarded as having such an impairment.”
42 U.S.C. § 12102(2)(C). A plaintiff has a
“regarded as” disability if he (1) has an impair-
ment that is not substantially limiting but
which the employer perceives as substantially
limiting, (2) has an impairment that is substan-
tially limiting only because of the attitudes of
others, or (3) has no impairment but is per-
ceived by the employer as having a substan-
tially limiting impairment. Gowesky v. Singing
River Hosp. Sys., 2003 U.S. App. LEXIS
2054, *7-*8 (5th Cir. Feb. 6, 2003) (citing
Bridges v. City of Bossier, 92 F.3d 329, 332
(5th Cir. 1996)); see also Sutton, 527 U.S. at
489. Waldrip must assert, if any, the first kind
of “regarded as” disability, because GE’s med-
ical staff learned of his chronic pancreatitis
years before they knew of his medication.
Waldrip has not satisfied his burden to cre-
5