United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
February 27, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
____________________
No. 03-60686
Summary Calendar
____________________
NANCY WINDLY
Plaintiff - Appellant
v.
HIGHTOWER OIL COMPANY INC
Defendant - Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 2:02-CV-80-SAA
_________________________________________________________________
Before KING, Chief Judge, and JOLLY and PRADO, Circuit Judges.
PER CURIAM:*
Plaintiff Nancy Windly appeals the district court’s summary-
judgment dismissal of her claim that she was discriminated
against in employment in violation of the Americans with
Disabilities Act, 42 U.S.C. § 12112. For the following reasons,
we affirm.
*
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that this opinion should not be published and is not precedent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.
I. BACKGROUND
Windly began working for defendant Hightower Oil Co., Inc.
(“Hightower Oil”) on June 6, 1998, as the manager of Hightower
Oil’s convenience store in Coldwater, Mississippi. Windly
received positive feedback on her performance in managing the
store, including an encouraging note from Hightower Oil’s
principal, George Hightower, dated August 8, 1998. The Coldwater
store was regarded as a difficult store to manage--a “hornets’
nest,” the parties call it.
On August 12, 1998, Windly informed her employer that she
had made an appointment to see a doctor regarding rectal
hemorrhaging. She also informed her employer that she had
experienced related problems that required colon surgery ten
years earlier. After the appointment, she told her employer that
she needed to take medical leave from August 17 to September 5.
At some point, George Hightower heard about Windly’s absence, but
he was apparently misinformed that Windly was suffering from a
bleeding ulcer.
On September 8, only a few days after Windly had returned to
work, George Hightower met with Windly and told her that she was
going to be terminated. There were no other witnesses to the
conversation, and the two participants have somewhat conflicting
recollections of what was said. According to Windly’s version,
George Hightower told her that his father had suffered from a
2
bleeding ulcer that would flare up whenever he was under stress
at work. George Hightower told Windly that her ulcer would flare
up the same way.
And he said due to the bleeding ulcer that I had that he
felt it would be in his and my best interest to terminate
me. . . . And he said that, you know, that he knew that
he had put me in a hornets’ nest and it was going to be
[a] problem and then said that he was intending to
purchase another store in Hernando, and he said due to
this ulcer, he said maybe when I get that, if I get it
and open it, that you could start out in a brand new
store and work in it. I can’t promise you that I would
hire you for it, but he said maybe later that I could go
to work up there.
Windly told George Hightower that she did not have a bleeding
ulcer, but she was still terminated.
In his deposition testimony, George Hightower admitted that
he had at some point mentioned to Windly, in urging her to seek
medical treatment, that his father had nearly died from a
bleeding ulcer. He did not recall discussing her medical
condition at the September 8 meeting. According to George
Hightower, Windly’s medical condition had no bearing on her
termination; rather, she was let go because she could not handle
the store manager position, lacked the necessary organizational
skills, and did not respond well to training and instructions.
An internal memo written by George Hightower and dated September
8 states that Windly “will be laid off due to stress related to
the job in managing personnel.” On September 28, 1998, the state
agency charged with paying unemployment compensation contacted
Hightower Oil regarding the reasons for Windly’s termination and
3
was told that she was no longer needed and was having some health
problems.
There were no other openings in the Coldwater store when
Windly was terminated, but various positions became available at
later dates. Hightower Oil has never offered Windly another
position, though she does not allege that she asked for one.
Windly filed a complaint with the EEOC, which determined
that there was a reasonable basis to believe that Hightower Oil
had discriminated against Windly on the basis of a perceived
disability. The EEOC issued a right-to-sue letter, and Windly
filed suit against Hightower Oil in the district court. The
parties consented to proceed before a magistrate judge.
Hightower Oil moved for summary judgment, contending that Windly
had no evidence that she was terminated for being regarded as
disabled. The magistrate judge granted the motion and dismissed
the case, and Windly now appeals.
II. ANALYSIS
A. Standard of Review
We review the district court’s grant of summary judgment de
novo, applying the same standard as the district court. Gowesky
v. Singing River Hosp. Sys., 321 F.3d 503, 507 (5th Cir. 2003).
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
4
any material fact and that the moving party is entitled to a
judgment as a matter of law.” FED. R. CIV. P. 56(c). We view the
facts in the light most favorable to the non-moving party,
drawing all reasonable inferences in that party’s favor. See
Gowesky, 321 F.3d at 507.
B. Windly’s “regarded as” claim
Windly claims that Hightower Oil terminated her in violation
of the Americans with Disabilities Act (ADA). See 42 U.S.C.
§ 12112(a) (2000) (prohibiting disability-based job
discrimination). The ADA defines “disability” as, inter alia, “a
physical or mental impairment that substantially limits one or
more of [a person’s] major life activities.” 42 U.S.C.
§ 12102(2)(A) (2000). Windly does not claim to suffer from a
disability; on the contrary, she asserts that she is not
disabled. Her claim is instead that her employer regarded her as
disabled and illegally discriminated against her on the basis of
that perceived disability. See id. § 12102(2)(C) (defining
“disability” also to include “being regarded as” having a
disability). A person is “regarded as” disabled if the person:
(1) has an impairment which is not substantially limiting
but which the employer perceives as constituting a
substantially limiting impairment; (2) has an impairment
which is substantially limiting only because of the
attitudes of others toward such an impairment; or (3) has
no impairment at all but is regarded by the employer as
having a substantially limiting impairment.
5
Bridges v. City of Bossier, 92 F.3d 329, 332 (5th Cir. 1996).
The major life activity involved in this case is the
activity of working. A person is substantially limited (i.e.,
disabled) with respect to the activity of working when that
person is
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.
29 C.F.R. § 1630.2(j)(3)(i) (2003); see also Sutton v. United Air
Lines, 527 U.S. 471, 491 (1999) (citing regulations and
explaining that the phrase “substantially limits” means, “at a
minimum, that [a person is] unable to work in a broad class of
jobs”).2 In order to succeed on her “regarded as” claim, Windly
must show that her impairment, if it existed as perceived, would
be substantially limiting in the way just described. See McInnis
v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 281 (5th Cir. 2000).
In granting the defendant’s motion for summary judgment, the
district court concluded that Windly could not show that George
Hightower, the relevant decisionmaker, regarded her as
2
In Sutton, the Supreme Court assumed without deciding
that the regulations defining “substantially limits” were
reasonable interpretations of the statute. 527 U.S. at 492. Our
cases treat the regulations as providing significant guidance.
See, e.g., Gowesky, 321 F.3d at 508; Bridges, 92 F.3d at 332.
6
substantially limited in the life activity of working.3 We agree
with that conclusion. Viewing the record in the light most
favorable to Windly, and drawing all reasonable inferences in her
favor, a reasonable fact-finder could decide that George
Hightower believed that she had a medical condition (namely,
bleeding ulcers) that could be brought on by job-related stress.
In order to survive summary judgment, however, the record must
contain sufficient evidence from which a reasonable fact-finder
could conclude that George Hightower believed that Windly’s
condition would exclude her from an entire class of jobs or a
broad range of jobs.
Citing Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 303-04
(4th Cir. 1998), Windly argues that she should be regarded as
disabled for ADA purposes if her employer considered her
incapable of filling supervisory positions because of the level
3
The district court employed the McDonnell Douglas
burden-shifting framework familiar from the Title VII context.
Our cases use that framework in ADA cases where the plaintiff
puts forward circumstantial evidence of discrimination. See
McInnis, 207 F.3d at 279. Under that framework, a plaintiff’s
prima facie case of discrimination includes, inter alia, a
showing that the plaintiff is disabled or is regarded as
disabled. Id. The McDonnell Douglas framework is unnecessary,
however, to the extent that the plaintiff relies on direct
evidence of discrimination. Trans World Airlines, Inc. v.
Thurston, 469 U.S. 111, 121 (1985); Brady v. Fort Bend County,
145 F.3d 691, 711-12 (5th Cir. 1998). Windly has direct evidence
of the reasons for her termination, namely George Hightower’s
statements in the September 8 conversation. Nonetheless,
whichever method of proof is involved, a plaintiff is required to
show that he or she is disabled or regarded as such. The
district court’s decision on summary judgment, and our decision
here, turns on whether Windly was regarded as disabled.
7
of stress that they involve. We do not believe that the record
here reasonably suggests that Windly was regarded as incapable of
filling supervisory positions in general. Both sides agree that
the Coldwater store was a particularly tough and stressful
assignment. On Windly’s own version of her conversation with
George Hightower, he stated that she could perhaps fill the store
manager position in a different store. George Hightower’s
apparent belief that Windly was unable to handle the stresses of
the Coldwater position does not in this case license a reasonable
inference that he perceived her to be unable to fill supervisory
positions more broadly. See Chandler v. City of Dallas, 2 F.3d
1385, 1393 (5th Cir. 1993) (“An employer’s belief that an
employee is unable to perform one task . . . does not establish
per se that the employer regards the employee as having a
substantial limitation on his ability to work in general.”). The
summary-judgment record reasonably supports at most an inference
that Windly was regarded as unable to perform a relatively narrow
range of particularly demanding managerial jobs. That kind of
perceived limitation does not rise to the level of a
“substantially limiting” (i.e., disabling) condition under the
ADA. See Bridges, 92 F.3d at 334 (holding that disqualification
from an especially traumatic occupation does not constitute a
substantial limitation on the major life activity of working);
see also Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 872-73 (2d
Cir. 1998) (holding that legal secretary was not regarded as
8
substantially limited in her ability to work when she was told
that “this job is too stressful for you because you have
colitis”; employer’s statement was limited to “this job” and
employer offered a good recommendation to give to future
employers).
Since Windly failed to demonstrate a genuine issue of fact
concerning whether she was regarded as disabled in the major life
activity of working, the magistrate judge correctly granted
Hightower Oil’s motion for summary judgment.
III. CONCLUSION
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
9