* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 97-60292

Summary Calendar

____________________

THOMAS LOGAN,

Plaintiff-Appellant,

v.

PENNACO HOSIERY, A Division of Danskin, Inc.,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Mississippi

(3:97-CV-103-B-A)

_________________________________________________________________

March 23, 1998

Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:*

Plaintiff-appellant Thomas Logan appeals the district

court’s grant of summary judgment in favor of defendant-appellee

Pennaco Hosiery on Logan’s claim under the Americans with

Disabilities Act, 42 U.S.C. §§ 12101-12213. Because we conclude

that the district court relied upon improper summary judgment
1 Dr. Lowe testified during his deposition that Logan was

capable of lifting 50 pounds. However, it is unclear from the

record whether Logan became capable of lifting 50 pounds before

or after his discharge.

2

evidence in holding that Pennaco Hosiery was entitled to summary

judgment, we vacate the district court’s order granting summary

judgment and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

Thomas Logan was employed by Pennaco Hosiery (Pennaco) as

the company’s Maintenance Service/Boiler. He suffered an

employment-related injury on September 4, 1994 when a heavy drum

of synthetic oil fell on his leg. Over the course of the next

year, Logan recovered slowly. Logan’s physician, Dr. Earnest

Lowe, concluded that Logan achieved maximum medical recovery from

his injury on May 23, 1995. Dr. Lowe gave Logan a permanent

partial impairment rating of 20% as to his lower extremities and

8% as to his person as a whole. According to Logan, “[h]e was

restricted by his physician from lifting or carrying [i]n excess

of 25 pounds1 and from standing or walking more than four (4)

hours in an eight (8) hour day.” Additionally, Logan indicates

that he “was restricted to occasionally climbing, balancing,

stooping and crouching, and could never kneel or crawl.” On

September 12, 1995, Pennaco terminated Logan because he had

exhausted his available medical leave.

On September 19, 1995, Logan filed a complaint against

Pennaco with the Equal Employment Opportunity Commission (EEOC),
3

asserting that his termination violated the Americans with

Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. On February

16, 1996, the EEOC issued Logan a right-to-sue letter, and Logan

subsequently filed suit against Pennaco, alleging violations of

the ADA, Title VII of the Civil Rights Act of 1964, the Age

Discrimination in Employment Act, the United States Constitution,

and the Mississippi Constitution. 

On October 25, 1996, Pennaco moved for partial summary

judgment, and the district court granted Pennaco’s motion,

dismissing all of Logan’s claims except his ADA claim. On

January 27, 1997, Pennaco moved for summary judgment on Logan’s

ADA claim, and the district court granted this motion as well. 

Logan timely filed a notice of appeal. On appeal, he challenges

only the district court’s grant of summary judgment in favor of

Pennaco on his ADA claim.

II. STANDARD OF REVIEW

“We review a grant of summary judgment de novo, applying the

same criteria used by the district court in the first instance.”

Texas Manufactured Housing Ass’n v. City of Nederland, 101 F.3d

1095, 1099 (5th Cir. 1996), cert. denied, 117 S. Ct. 2497 (1997). 

Summary judgment is proper “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

any material fact and that the moving party is entitled to
4

judgment as a matter of law.” FED. R. CIV. P. 56(c); see also

Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).

III. DISCUSSION

In order to establish a prima facie claim under the ADA, a

claimant must prove that “(1) he has a disability; (2) he was

qualified for the job; and (3) an adverse employment decision was

made because of his disability.” Robinson v. Global Marine

Drilling Co., 101 F.3d 35, 36 (5th Cir. 1996), cert. denied, 117

S. Ct. 1820 (1997). The district court granted summary judgment

in favor of Pennaco on Logan’s ADA claim because it concluded

that, as a matter of law, Logan was not qualified for the

Maintenance Service/Boiler position. An individual is qualified

for his job for purposes of the ADA if he can perform the

essential functions of the job either with or without reasonable

accommodation. See 42 U.S.C. § 12111(8); Turco v. Hoechst

Celanese Corp., 101 F.3d 1090, 1092 (5th Cir. 1996).

In an answer to an interrogatory posited by Pennaco, Logan

conceded that Pennaco’s written job description of the

Maintenance Service/Boiler position contained the essential

functions of his position. After commencement of the instant

litigation, Pennaco Hosiery had one of its employees, Susan

Alexander, prepare a Motion Analysis Summary, which purported to

describe the type and degree of physical exertion required to

perform the duties listed in Pennaco’s written job description
5

for the Maintenance Service/Boiler position. The Motion Analysis

Summary provides the following general description of the

Maintenance Service/Boiler position:

[T]he operator is required to be continuously walking

99% of 8 hour work day. During this time variations in

bending, reaching, climbing, pushing and pulling and

lifting will also occur. Standing in one place may

occur at some job sites but use of upper body will

occur (bending, reaching, lifting). Walking distance

will exceed 5 miles daily and in most cases not more

than 10 miles in 8 hour work day. Sitting is very

limited, usually to driving distance which is

approximately 1% of daily duties. Over a period of

four 40 hour weeks the operator is continuously walking

98.3% of the time, while he may sit to drive 1.7% of

the time.

The Motion Analysis Summary also describes many of the duties

listed in the written job description as requiring the employee

to lift up to 100 pounds.

Pennaco submitted the Motion Analysis Summary as an

attachment to a declaration by Alexander. Alexander’s

declaration states that she “formulated the study based on job

descriptions of the position, interviews with the employee

currently holding the position, Kevin Carpenter, interviews with

the Maintenance Department Manager[,] Larry Taylor, and hours of

observing Kevin Carpenter performing his duties.” 

Based in large part on the Motion Analysis Summary, the

district court concluded that, as a matter of law, Logan was not

qualified to perform duties associated with the Maintenance

Service/Boiler position at Pennaco. Specifically, the district

court found that Logan had offered no summary judgment evidence
2 The district court also noted that performance of the

duties of the Maintenance Service/Boiler position required

periodic heavy lifting. Specifically, it noted that the employee

occupying the position was required to carry 50-pound bags of

salt from a storage facility to the boiler room and pour them

into the water system, tilt 700-pound drums of synthetic oil so

that they could be emptied into one-gallon containers, and move

200-pound barrels of sulfuric acid from the storage facility to

the boiler room. The district court acknowledged that Logan had

indicated that he could perform these functions with reasonable

accommodation. Specifically, he claimed that he could use a

hand-held pump to transfer oil from the 700-pound drums, thereby

eliminating the necessity of tilting the drums, and that he could

transport the salt if Pennaco bought smaller bags or allowed him

to pour the salt into smaller containers before transporting it. 

In his deposition and affidavit, Logan stated that only one

barrel of sulfuric acid needed to be moved every day or two and

that the timing of moving the barrels was not critical. He

therefore argued that another employee could move the barrels of

sulfuric acid. Because the district court concluded that medical

restrictions on the time Logan may spend on his feet and

restrictions on his ability to climb and bend precluded him from

being qualified for the Maintenance Service/Boiler position, the

court did not specifically address the reasonableness of the

accommodations that Logan suggested would allow him to perform

the essential functions of the position without the necessity of

heavy lifting.

6

contravening the Motion Analysis Summary’s conclusion that

performance of the duties of the Maintenance Service/Boiler

position required the employee to spend approximately 98% of each

day on his feet as well as frequently climb and bend. The

district court thus concluded that, as a matter of law, Logan was

not qualified for his former position because he could not

perform the physical requirements articulated in the Motion

Analysis Summary without substantial violation of his medical

restrictions.2

Logan argues that the district court erred in denying his
7

motion to strike Alexander’s declaration and the attached Motion

Analysis Summary on the grounds that (1) the declaration and

Motion Analysis Summary contain hearsay that Pennaco has not

demonstrated falls within any exception to the general rule

barring the admissibility of hearsay evidence and (2) Alexander’s

declaration does not establish that she is an expert qualified to

testify on the matters contained in the Motion Analysis Summary.

The district court rejected these arguments, concluding that the

contents of the Motion Analysis Summary did not constitute a

statement of expert opinion, but rather constituted nothing more

than a recitation of facts that Alexander personally observed. 

The district court did not expressly address Logan’s hearsay

objection but did conclude that the contents of the Motion

Analysis Summary reflected Alexander’s personal knowledge.

In determining whether a moving party is entitled to summary

judgment, “only materials which were included in the pretrial

record and that would have been admissible evidence may be 

considered.” Stults v. Conoco, Inc., 76 F.3d 651, 654-55 (5th

Cir. 1996). We review a district court’s determination that

information contained in the pretrial record is admissible

evidence, and thus proper summary judgment evidence, for an abuse

of discretion. See United States v. Torres, 114 F.3d 520, 526

(5th Cir.), cert. denied, 118 S. Ct. 316 (1997); Christophersen

v. Allied-Signal Corp., 939 F.2d 1106, 1109 (5th Cir. 1991).

While not expressly addressing Logan’s contention that the
8

Motion Analysis Summary contained hearsay, the district court

implicitly rejected this argument by concluding that the Motion

Analysis Summary “merely recit[ed] facts that [Alexander]

observed.” However, Alexander’s declaration states that she

prepared the Motion Analysis Summary based upon observation of

Kevin Carpenter as he performed his Maintenance Service/Boiler

duties and based upon interviews with Carpenter and his

supervisor, Larry Taylor.

The statements made by Carpenter and Taylor to Alexander

during her interviews with them clearly constitute hearsay. See

FED. R. EVID. 801 (“‘Hearsay’ is a statement, other than one made

by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted.”). 

Rule 602 of the Federal Rules of Evidence establishes that a

witness may testify only as to matters of which the witness has

personal knowledge. See FED. R. EVID. 602. This rule prohibits a

witness “from testifying to the subject matter of [a] hearsay

statement, as he has no personal knowledge of it.” Id. advisory

committee note; see also Rock v. Huffco Gas & Oil Co., 922 F.2d

272, 280 (5th Cir. 1991). Thus, to the extent that the Motion

Analysis Summary merely recounts what Taylor and Carpenter told

Alexander during their interviews--as opposed to what Alexander

actually observed during her observations of Carpenter--it is

inadmissible under the Federal Rules of Evidence and is therefore

not competent summary judgment evidence.
3 We recognize that expert opinion testimony based on

hearsay may be admissible. See FED. R. EVID. 703; United States

v. Gresham, 118 F.3d 258, 266 (5th Cir. 1997), cert. denied, 118

S. Ct. 702 (1998). However, as noted supra, the district court

expressly concluded that the contents of the Motion Analysis

Summary did not constitute expert opinion. Moreover, even if the

Motion Analysis Summary could be construed as an expression of

expert opinion rather than a mere recitation of facts of which a

lay witness would be capable, Pennaco has not established that

Alexander is qualified as an expert based on her “knowledge,

skill, experience, training, or education.” FED. R. EVID. 702. 

Alexander’s declaration simply states that she is employed by

Pennaco as an “Engineering Analyst.” Without any further

description of her position or her education, Alexander’s

declaration is insufficient to establish her authority to offer

expert testimony on any subject.

9

Pennaco bore the burden of proving that Alexander had

personal knowledge of the matters contained in the Motion

Analysis Summary. First Nat’l Bank of Louisville v. Lustig, 96

F.3d 1554, 1576 (5th Cir. 1996); United States v. Davis, 792 F.2d

1299, 1304 (5th Cir. 1986). It failed to meet this burden

because Alexander’s declaration provided the district court with

no way to determine what portions of the Motion Analysis Summary

were based upon Alexander’s personal observations of Carpenter

and what portions were based solely upon her interviews with

Carpenter and Taylor. The district court therefore abused its

discretion in considering the Motion Analysis Summary as

competent Summary Judgment evidence.3

IV. CONCLUSION

Because the Motion Analysis Summary played such a

substantial role in the district court’s determination that no

genuine issue of material fact existed as to whether Logan was
10

qualified for the Maintenance Service/Boiler position, we VACATE

the district court’s order granting summary judgment in favor of

Pennaco on Logan’s ADA claim and REMAND to allow the district

court to determine in the first instance whether Pennaco is

nonetheless entitled to summary judgment based on those portions

of the pretrial record that constitute competent summary judgment

evidence. The district court is, of course, free to order

additional submissions from the parties on the propriety of

summary judgment, including affidavits or declarations more

clearly indicating what portions of the Motion Analysis Summary 

are derived from Alexander’s personal knowledge.

VACATED and REMANDED. Costs shall be borne by Pennaco.