1 United States Court of Appeals,

Fifth Circuit.

No. 97-30305.

Summary Calendar

Phillip T. STILL, Plaintiff-Appellant,

v.

FREEPORT-McMORAN, INC., Defendant-Appellee.

Aug. 27, 1997.

App eal from the United States District Court for the Eastern

District of Louisiana.

Before JOLLY, BENAVIDES and PARKER, Circuit Judges.

PER CURIAM:

Phillip T. Still appeals the district court's grant of summary

judgment in favor of his former employer, Freeport McMoran, Inc.

("Freeport"). Still had sued Freeport, maintaining that he had

been fired because of a disability in violation of the Americans

with Disabilities Act, (" ADA"), 42 U.S.C. § 12101 et seq. The

district court dismissed the suit on Freeport's motion for summary

judgment. Because Still is not legally disabled under the ADA, the

district court's judgment is affirmed.

I

Freeport is a petroleum exploration compa ny. In 1988,

Freeport hired Still to serve as a safety equipment clerk. In June

1993, Still was transferred to Freeport's Caminada Mine, to serve

as a warehouse clerk. Freeport ceased all operations at Caminada

Mine on March 15, 1994, and job t ransfers were offered to 55

Caminada Mine employees. Freeport laid off the remaining 392

employees.

Freeport offered Still a transfer to another facility to work

as an outside rig worker. Still, who is blind in one eye, refused

the transfer believing that his limited sight made the position too

dangerous for him to perform. He was therefore discharged. Still

maintains that this discharge violated the ADA.

T h e district court granted Freeport's motion for summary

judgment, holding that Still was not disabled within the meaning of

the ADA because his partial blindness did not substantially limit

a major life activity. The court also held that he was not a

qualified individual with a disability because he could not perform

the essential functions of the job of an outside rig worker with or

without reasonable accommodation. We affirm this judgment.

II

To make out a prima facie case of discrimination under the

ADA, a plaintiff must show that (a) he has a disability; (b) he is

a qualified individual for the job to which he is applyin g; and

(c) that an adverse employment decision was made solely because of

his disability. R izzo v. Children's World Learning Centers, Inc.,

84 F.3d 758 (5th Cir.1996).

Still has failed to demonstrate that he is disabled under the

statute. The ADA defines "disability" as:

(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 impairment; or

(C) being regarded as having such an impairment.

42 U.S.C. § 12102(1).3

Still contends that his blindness in one eye is a "physical

impairment that substantially limits one or more of the major life

activities." Major life activities include "caring for one's self,

performing manual tasks, walking, seeing, hearing, speaking,

breathing, learning, and working." 29 C.F.R. § 1630.2(i). Still

concedes that he can care for himself, walk, hear, speak, breath,

and learn wit hout impairment. He contends, however, that his

partial blindness qualifies as a disa b ility because it

"substantially limits" his "seeing and working." This contention

is without record support.

There is no dispute that Still's remaining eye functions

normally. Moreover, although his peripheral vision is limited by

his partial blindness, Still is a ble to perform normal daily

activities. For example, he drives both cars and motorcycles, and

is a certified marks man. Still offers no evidence that he is

unable to engage in any usual activity because of his partial

blindness. Therefore, Still's sight is not "substantially

limited."

Moreover, Still is not substantially limited from working. A

person is substantially limited from working if he or she 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 tra ining, 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); D utcher v. Ingalls1 The regulations accompanying the ADA provide that

(I) The term substantially 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.

(ii) In addition to the factors listed in paragraph

(j)(2) of this section, the foll owing factors may

be considered in determining whether an individual

is substantially limited in the major life activity

of "working":

(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 no t utilizing similar training,

knowledge, skills or abilities, within that geographical

area, fro m 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); E llison v. Software Spectrum, Inc.,

85 F.3d 187, 192 (5th Cir.1996).

4 Shipbuilding, 53 F.3d 723, 726 (5th Cir.1995). 1

Still has introduced no evidence that he is signi ficantly

restricted in performing any job, other than an outside rig worker.

To the contrary, his employment history demonstrates that Still has

worked as a security officer for the United States Department of

the Navy. He also has served as Acting Sergeant for the Jefferson

Parish Sheriff's Office, and Road Deputy for the Sheriff's Office.5

He currently works one day a month as a reserve officer for the

City of Gretna, and has held this position for twelve years. These

positions require Stills to be involved in strenu ous and

potentially dangerous work. Still has also worked as a sales

representative for an oil company. He is certified as an Emergency

Medical Technician. Currently, Stills works as a field accountant.

This wide variety of work experiences demonstrates that Still is

able to perform a "broad range" of jobs, and is not legally

disabled.

III

Even if there was record evidence that Still was disabled, we

would still affirm the district court's judgment. The district

court held that Still was not a "qualified individual" under the

ADA. Before a plaintiff may prevail under the ADA, it must be

shown that the plaintiff is qualified to perform the job he or she

holds or desires.

There is no dispute that Still's job as a warehouse clerk at

the Caminada Mine was eliminated when the plant was closed.

Freeport had no contractual or statutory obligation to create a new

job for him at another location. S ee White v. York Int'l Corp., 45

F.3d 357, 362 (10th Cir.1995) (noting "the ADA does not require an

employer to promote a disabled employee as an accommodation, nor

must an employer reassign the employee to an occupied position, nor

must the employer create a new position to accommodate the disabled

worker.") (citing 29 C.F.R. pt. 1630, App. § 1630.2( o )); Gile v.

United Airlines, Inc., 95 F.3d 492, 498 (7th Cir.1996 )

.6

Nonetheless, Freeport did offer him a job as a rig worker. Still

contends, however, that he is not qualified to perform the basic

requirements of the job. He also maintains that no reasonable

accommodation would allow him to perform the basic tasks required

of a rig worker. Therefore, by his own admission, Still was not

qualified for the position.

For the foregoing reasons, we AFFIRM the summary judgment

entered by the district court.

AFFIRMED.