United States Court of Appeals,
Fifth Circuit.
No. 94-60499
Summary Calendar.
Tamela J. DUTCHER, Plaintiff-Appellant,
v.
INGALLS SHIPBUILDING, Defendant-Appellee.
June 5, 1995.
Appeal from the United States District Court for the Southern District of Mississippi.
Before POLITZ, Chief Judge, JOLLY and BENAVIDES, Circuit Judges.
POLITZ, Chief Judge:
Tamela J. Dutcher appeals an adverse summary judgment in her suit against her former
employer, Ingalls Shipbuilding, Inc., for discrimination under the Americans with Disabilities Act.1
We affirm.
Background
On November 27, 1989 Dutcher sustained serious injury to her right arm in a gun accident.
After extensive repair surgery, Dutcher began training as a welder, hoping thereby to prevent
deterioration in the use of her arm. In July of 1991 she completed welding school and was hired by
Ingalls.
Ingalls initially assigned Dutcher to the "bay area," a job requiring welders to climb as much
as 40 feet to reach their work. On her second day of work Dutcher requested a transfer to the fab
shop, an assignment involving little or no climbing, because of difficulties she experienced due to the
injury to her arm. The request was denied because she had insufficient seniority to transfer to a fab
shop position.
During the following month Dutcher worked in the bay area without any time off because of
problems with her arm. At the end of that month, however, she secured a transfer to the fab shop
1
42 U.S.C. §§ 12101-12213 (Supp. III 1991).
because of her father's influence with the welding superintendent. She worked as a welder in the fab
shop, or similar assignments, until laid off as part of a large-scale reduction in force in May 1992.
Ingalls recalled Dutcher on September 8, 1992 at which time she was told to report to the
infirmary for a pre-employment physical. She advised the examining doctor that the condition of her
arm prevented her from climbing and that she needed a job which did not require such. The doctor
gave Dutcher the requested job restriction. Ingalls then advised Dutcher that it could not then employ
her in light of the job restriction.
Dutcher contacted Ingalls' labor relations office which asked her to provide a current medical
report on her arm. Five weeks later she returned with the requested information. Ingalls asked for
an explanation of the delay and while reviewing the proffered reasons experienced another reduction
in force resulting in every welder in Dutcher's job classification being laid off.
On June 21, 1993 Dutcher filed the instant action, asserting that Ingalls violated the ADA by
refusing reinstatement in September of 1992 to her job in the fab area. The district court entered
summary judgment in favor of Ingalls, finding that the impairment of Dutcher's arm did not qualify
as a "disability" under the ADA. Dutcher timely appealed.
Analysis
We review a grant of summary judgment applying the same standard as the district court.2
Summary judgment is proper when no issue of material fact exists and the moving party is entitled
to judgment as a matter of law. Fact questions are viewed in the light most favorable to the
nonmovant and questions of law are reviewed de novo.
Dutcher contends that the district court erred when it concluded that she does not have an
ADA-qualified disability. She maintains that when the summary judgment evidence on the extent of
her disability is viewed in the most favorable light that there is a genuine issue of material fact whether
her injured arm qualifies as a disability.
The ADA prohibits discrimination "against a qualified individual with a disability because of
the disability of such individual in regard to job application procedures, the hiring, advancement, or
2
Armstrong v. City of Dallas, 997 F.2d 62 (5th Cir.1993).
discharge of employees, employee compensation, job training, and other terms, conditions, and
privileges of employment."3 The term "disability" as used in the ADA means:
(A) a physical or mental impairment that substantially limits one or more of the major life activities
of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.4
The ADA restricts the meaning of impairment; the parties, however, do not dispute that Dutcher's
gun accident left her with a permanent impairment within the meaning of the statute.5 Dutcher,
however, misconstrues the significance of this finding. A physical impairment, standing alone, is not
necessarily a disability as contemplated by the ADA. The statute requires an impairment that
substantially limits one or more of the major life activities.
The ADA defines neither "substantial limits" nor "major life activities," but the regulations
promulgated by the EEOC under the ADA provide significant guidance. These regulations adopt the
same definition of major life activities as used in the Rehabilitation Act.6 "Major life activities means
functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking,
3
42 U.S.C. § 12112(a).
4
42 U.S.C. § 12102(2). We note that this definition of "disability" is substantially equivalent to
that in the Rehabilitation Act, 29 U.S.C. §§ 701-797 (1988, Supp. III 1991 & Supp. V 1993).
See Chandler v. City of Dallas, 2 F.3d 1385, 1391 n. 18 (5th Cir.1993), cert. denied, --- U.S. ----
, 114 S.Ct. 1386, 128 L.Ed.2d 61 (1994).
5
A physical or mental impairment is defined as:
(1) Any physiological disorder, or condition, cosmetic disfigurement, or
anatomical loss affecting one or more of the following body systems: neurological,
musculoskeletal, special sense organs, respiratory (including speech organs),
cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin,
and endocrine; or
(2) Any mental or psychological disorder, such as mental retardation,
organic brain syndrome, emotional or mental illness, and specific learning
disabilities.
29 C.F.R. § 1630.2(h)(1), (2).
6
Bolton v. Scrivner, Inc., 36 F.3d 939 (10th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct.
1104, 130 L.Ed.2d 1071 (1995); see Chandler.
breathing, learning, and working."7 Whether an impairment substantially limits8 a major life activity
is determined in light of (1) the nature and severity of the impairment, (2) its duration or expected
duration, and (3) its permanent or expected permanent or long-term impact.9
We first examine whether Dutcher's impairment substantially limits a major life activity other
than working.10 Despite assertions to the contrary, both her deposition testimony and that of her
physician inform that Dutcher can "take care of the normal activities of daily living." It is undisputed
that she can feed herself, drive a car, attend her grooming, carry groceries, wash dishes, vacuum, and
pick up trash with her impaired hand. In her deposition testimony Dutcher admits that she has trained
herself to do "everything ... [she is] supposed to do" and that she can do "all of the basic things" she
needs to do in life with her arm. Her medical expert testified that Dutcher can do lifting and reaching
as long as she avoids heavy lifting and repetitive rotational movements. While her medical expert
offered the opinion that her arm is impaired, this fact, as we noted above, is not disputed. More
relevant to today's inquiry is that there was no evidence offered on which a jury could find that this
7
29 C.F.R. § 1630.2(i). This listing, however, is not intended to be exhaustive. Other major
life activities could include lifting, reaching, sitting, or standing. 29 C.F.R. § 1630, Appendix to
Part 1630—Interpretive Guidance on Title I of the Americans with Disabilities Act, § 1630.2(1).
8
To substantially limit means:
(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 the same major life activity.
29 C.F.R. § 1630.2(j)(1)(i), (ii).
9
29 C.F.R. § 1630, App., § 1630.2(j).
10
42 U.S.C. § 12102(A); 29 C.F.R. § 1630, App., § 1630.2(j) ("If an individual is not
substantially limited with respect to any other major life activity, the individual's ability to perform
the major life activity of working should be considered. If an individual is substantially limited in
any other major life activity, no determination should be made as to whether the individual is
substantially limited in working.").
impairment substantially limited a major life activity.11
Having concluded that Dutcher failed to present summary judgment evidence of a substantial
limitation on a major life activity other than worki ng, we turn to her strongest argument: Ingalls'
actions demonstrate that her impairment affects the major life activity of working. With regard to the
activity of working:
[S]ubstantially limits means 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.12
Dutcher presents no evidence that her disability prevents her from performing an entire class of jobs.13
Her experience in the fab shop prior to her first layoff demonstrates that she can work as a welder;
her injured arm adversely affects only the functioning in a welding position requiring substantial
climbing. As we noted in Chandler,14 the inability to perform one aspect of a job while retaining the
11
Dutcher contends that her deposition also set forth that she has difficulty picking up little
things from the floor, that she has trouble holding things up high or real tight for long periods of
time, and that she sometimes has problems turning the car's ignition. We are persuaded that a jury
could not find that her impairment substantially limits major life activities on this basis. Cf.
Coghlan v. H.J. Heinz Co., 851 F.Supp. 808 (N.D.Tex.1994) (denying summary judgment in light
of evidence that impairment affected eating and sleeping).
12
29 C.F.R. § 1630.2(j)(3)(i).
13
We note that three additional factors can be considered when determining whether an
impairment substantially limits the major life activity of working. Those are:
(A) The geographical area to which the individual has reasonable access;
(B) The job from which the individual has been disqualified because of an impairment, and the
number and types of jobs utilizing similar training, knowledge, skills or abilities, within
that geographical area, from which the individual is also disqualified because of the
impairment (class of jobs); and/or
(C) The job from which the individual has been disqualified because of an impairment, and the
number and types of other jobs not utilizing similar training, knowledge, skills or abilities,
within that geographical area, from which the individual is also disqualified because of the
impairment (broad range of jobs in various classes).
29 C.F.R. § 1630.2(j)(3)(ii)(A)-(C). Dutcher provided no such evidence in opposing
Ingalls' summary judgment motion.
14
That Chandler construed provisions of the Rehabilitative Act is of no moment; the
substantial equivalency of the definition of disability under the Rehabilitation Act and the ADA
strongly suggests that prior constructions of the Rehabilitation Act should be generally applicable
ability to perform the work in general does not amount to substantial limitation of the activity of
working.15 "An impairment that affects only a narrow range of jobs can be regarded either as not
reaching a major life activity or as not substantially limiting one."16 Thus, we conclude that Dutcher
failed to provide summary judgment evidence that her impairment substantially limited a major life
activity.
Dutcher also fails to raise a genuine question of fact about whether she has a disability under
the ADA because she has a record of an impairment that substantially limits a major life activity.17
There is no summary judgment evidence of such; similarly, there is no evidence that she had a
"history of, or has been misclassified as having, a mental or physical impairment that substantially
limits one or more major life activities."18
Dutcher might have qualified as disabled under the ADA if she could have provided sufficient
summary judgment evidence that she was regarded by Ingalls as having an impairment that
substantially limited a major life activity, whether she actually had such an impairment or not.19 The
in construing the ADA definition of "disability." See Bolton, 36 F.3d at 943 ("The legislative
history of the ADA indicates that "Congress intended that the relevant caselaw developed under
the Rehabilitation Act be generally applicable to the term "disability" as used in the ADA.' ")
(quoting 29 C.F.R. § 1630, App., § 1630.2(g) (citing legislative history) (citations omitted)).
15
Chandler (citing with approval Elstner v. Southwestern Bell Tel. Co., 659 F.Supp. 1328
(S.D.Tex.1987), aff'd, 863 F.2d 881 (5th Cir.1988) (unpublished), where court held that service
technician with impaired knee that prevented him from climbing utility poles was neither
handicapped nor regarded as such within the meaning of the Rehabilitation Act because he could
still perform work that did not require climbing).
16
Jasany v. United States Postal Service, 755 F.2d 1244, 1249 n. 3 (6th Cir.1985)
(interpreting Rehabilitation Act).
17
42 U.S.C. § 12102(B).
18
29 C.F.R. § 1630.2(k).
19
42 U.S.C. § 12102(2)(C). "Regarded as having such an impairment" means that the
individual:
(1) Has a physical or mental impairment that does not substantially limit major life activities but is
treated by a covered entity as constituting such 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
uncontroverted facts, however, are that Ingalls continued to employ her as a non-climbing welder
after her initial transfer out of the bay area—the transfer which she claims put them on notice of her
impairment. Dutcher concedes in her brief that Ingalls denied her a position solely because she could
not climb; she does not suggest that she was denied a welding job because of a belief t at her
h
impaired arm would prevent her from performing adequately the welding function.20
Moreover, Dutcher offers no summary judgment evidence to controvert Ingalls' evidence that
no non-climbing welding positions were available when she was denied reinstatement. Accordingly,
the district court properly found that Ingalls did not deny Dutcher any available welding position on
the basis of her impairment. We perforce conclude that, on these facts, a jury could not find that
Ingalls regarded Dutcher as having a disability as contemplated by the ADA.
The judgment appealed is AFFIRMED.
(3) Has none of the impairments defined in ... [29 C.F.R. § 1630.2(h) ] but is treated by a covered
entity as having a substantially limiting impairment.
29 C.F.R. § 1630.2(1)(1)-(3).
20
See Forrisi v. Bowen, 794 F.2d 931, 935 (4th Cir.1986) ("The statutory reference [in the
Rehabilitation Act] to a substantial limitation indicates instead that an employer regards an
employee as handicapped in his or her ability to work by finding the employee's impairment to
foreclose generally the type of employment involved.").