## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 01-50186

_______________



### J OHNNY 

### M ORENO



### ,

Plaintiff-Appellee,

VERSUS



### P EPSI 

### -C OLA 

### M ETROPOLITAN 

### B OTTLING 

### C OMPANY



### , I NC



### .,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________ March 28, 2002

Before R EAVLEY

, S MITH , and D ENNIS

, Circuit Judges,

J ERRY E. S MITH , Circuit Judge: *

Johnny Mor eno appeals a summary judgment entered in favor of Pepsi-Cola Metropol

itan Bottling Company, Inc. (“Pepsi”), in this

title VII and Americans with Disabilit ies Act

(“ADA”) case. We affirm.

I.

Moreno, w ho is hispanic, had worked for

Pepsi si nce June 1986 as a field service mechanic in t he marketing equipment management department. His duties involved installing and s e rvicing cold beverage equipment in

the Kileen-Waco-Bryan area of Texas. By

1992, Moreno had attained the position o f

master mechanic and was working under the * Pursuant to 5 TH C IR

. R. 47.5, the court has

determined that this opinion s hould not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR

. R. 47.5.4.2

dir e ct supervision of Billy Swindell, the marketing equipment manager.

In June 1997, Moreno inured his right knee

while ins t alling a piece of equipment. He returned to work after this incident but operated

under a restri ct io n to lift no more than thirty

pounds. In September, he had arthroscopic

knee surgery and subsequently returned to

work under the same weight restriction. For a

few weeks following the operati on, he performed administrative duties, then received

full-duty clearance an d returned to regular

work without restriction. In May 1998, he

sprained his ankle while stepping out of a company vehicle; this injury did not limit his abilit y

to perform his job.

In May 1998, Pepsi terminated Moreno,

citing his insubordination for refusing to install

an ice machine. The parties dispute Moreno’s

disciplinary track record before this incident.

Pepsi poi nt s to six acts of misconduct that,

coupled with the insubordination, justified the

d ischarge: A customer complaint relating t o

Moreno’s failur e t o maintain the customer’s

equipment, the swapping of on-call duty, failure t o follow the company call-in procedure

for planned absence, a reprimand for sleeping

during company time, a charge of smoking in

the warehouse, and a three-day suspension for

poor performance in the installation o f a dispenser. 1

Moreno responds to only so me of these allegations of misconduct . He adm its to the

violation of the call-swapping procedure but

notes tha t t he man he swapped with (a white

co-worker) was only reprimanded. As for the

failure to follow proper absence procedur es,

Moreno contends he was never in violation of

the policy, because Pepsi n ever provided him

a copy of any written policy, and when asked

to do so in discovery, produced a handbook

from a different office . Moreno disputes the

sleeping on the job allegation, claiming the disciplinary action report on the incident does not

even mention he was asleep. Finally, he does

not deny smoking in the company warehouse

but notes there is a white employee who does,

and notes the presence of ashtrays in th e

building. Notably, he does not respond to the

allegations he was reprimanded and suspended

for poor job performance whil e dealing directly with customers.

The final incident precipitating Moreno’s

ter mination involved Swindell’s request that

Moreno install an ice machine for a customer.

Again, t he parties dispute the facts. Moreno

avers he was asked to install a 700-pound machine himself, but Pepsi claims Moreno was informed tha t t here were a technician and a

truck available to help with the installation.

When Swindell discovered the machine was

not installed, he called Moreno, who informed

him he had swapped call with another employee. Pepsi notes this was unauthorized and was

not logged in at the dispatch office. The parti e s do agree that after Moreno informed

Swindell of his swapped call status, he turned

off his pager and phone, leaving Swindell with

no way to contact him, and thus no way to coordinate the installation on time. 1 Pepsi also notes an anonymous caller w h o

claimed Moreno was working his own ice machine

installation and repair business on company time.

Moreno correctly responds that this accusation is

hearsay and is not competent summary judgment

evidence. F

owler v. Smith , 68 F.3d 124, 126 (5th

Cir. 1995).3 II.

More n o filed a charge of discrimination

with the Equal Employment Opportuni ty

Commission (“EEOC”) in N ovember 1998 and

amended it in January

1999. He claims to

have amended the c harge once again, in May

1999, via a letter sent to the Te xas Commission on Human Rights. This letter is not in the

EEOC file. The sole basis of his claim of discrimination in these documents was disabilit y.

T he EEOC issued a right to sue lett er in

July 1999. Moreno claims to have sent a new

charge to the EEOC in September 1999 alleging he was terminated also because of national

origin. Moreno sued in September 1999.

III.

Moreno offers two legal theories to support

his argument that Pep si discharged him unl awfully: a title VII claim based on nati onal

origin discrimination and an ADA claim based

on limitations stemming from his knee injury.

T he district court dismissed both claims o n

summary judgment. Accordingly, we review

that judgment de novo

. Walton v. Alexander

, 44 F.3d 1297, 1301 (5th Cir. 1995) (en banc).

Summary judgment is proper where “there

is no genuine issue as to any material fact and

the moving party is entitled to a judgment as a

matter of law.” F ED

. R. C IV

. P. 56(c). All inferences from the record must be construed in

the light most favorable to th e non-movant.

Mat sushita Elec. Indus. Co. v. Zenith Radio

Corp

. , 475 U.S. 574, 587-88 (1986); Walke r

v. Thompson

, 214 F.3d 615, 624 (5th Ci r.

2000). For a plaintiff to survive summary

judgment, there must be evidence in the record

sufficient to sustain a finding in favor of the

non-movant. L ittle v. Liquid Air Corp.

, 37

F.3d 109, 1075 (5th Cir. 1994) (en banc). IV.

The ADA

bars discrimination in employment agains t t ho se with a disability who are

otherwise qualified for a job. 42 U.S.C.

§ 12112(a). To establish a p r ima facie case, a

plaint iff mu st (1) have a disability, (2) be

otherwise qualified, and (3 ) be subj ect to adver se employment action because of the disabilit y

. I vy v. Jones

, 192 F.3d 514, 515 (5th

Cir. 1999).

“Disabilit y” as used in the ADA means “(A)

a physical or mental impairment that substant ially limit s o ne or more of the major life

activities of such individual; (B) a re cord of

such an impairment; or (C) being regarded as

having such an impa irment.” 42 U.S.C.

§ 12102(2). An “impairment” includes almost

all disorders or conditions affecting one of the

body systems. 29 C.F.R. § 1630.2(h)(1). 2 A

“major life activity” is usually defined by reference to the EEOC guidelines implement ing

the ADA. These include “caring for oneself,

performing manual ta sks, walking, seeing,

hearing, speaking , breathing, learning, and

working;” also “sitting, standing, lift ing, [and]

reaching.” 29 C.F.R. 1630.2(i); App.

§ 1630.2(i).

2 More specifically, an impairment is

Any physiological disorder, or

condi tion, 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, hem

i c and lymphatic, skin, and endocrine.

29 C.F.R. 1630.2(h)(1).4

To be “substantia lly limited,” a plaintiff

mu st show an inability to perform one of the

listed life activities up to the standards of an

average person. 3 The question whether a plaint iff is disabled for purposes of the ADA is

a case-specific determination. T oyota M otor

Mfg., Inc. v. Williams

, 122 S. Ct. 681 (2002).

In his brief, liberally

construed, Moreno

claims he is either disabled or regarded as such

in that he is substantially limit ed in the maj o r

life activities of lifting, walking, climbing, and

working. We address these in turn.

A.

Moreno aver s he is not able to lift in the

manner o f an average person and thus is

disabled under the definitions laid out above.

Moreno’s statements as to specific limitations

on his abilit

y to lift are scant. The only

concrete example s he has offered involve his

ability to lift at least thirty pounds and his

inability to lift 700 pounds (the weight of the

ice machine Swindell allegedly required him to

install solo). The ADA does not posit Atlas as

the a verage person; Moreno’s inability to lift

m ore than a quarter ton has no relevance to

the disabilit

y question. Even assuming Moreno could lift no more than thirty pounds, this

limitation would no t constitute a disability 3 The regulation reads, in its entirety:

The term substantially limits

means:

(i) Unable to perform a major life

activity that the average person in

t he 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 activi ty as compared to the

condition , manner, or duration

under which the average person in

the general population can

perform that same major life

activity.

(2) The following factors s hould

be considered in det er mining

whether an individual is

substantially limited

in a major

life activity:

(i) The nature and severity of the

impairment;

(ii) The duration or exp e cted

duration of the impairment; and

(iii) The perma nent or long term

i m pact, or the expected permanent

or long t er m impact of or

resulting from the impairment.

(3) With respect to the major life

activity of working SS

(continued...) 3 (...continued)

(i) The term substant ially limits

means significantly restrict e d in

the ability to perform either a

class of jobs or a broad range of

jobs in various classes as

compared to th e average person

having comparable training, skills

and abilities. The inabi lity to

perform a sin gle, particular job

does n ot constitute a substantial

limitation in the major life activity

of working.

29 C.F.R. § 1630.2(j)(1),(2).5

within the meanin g o f the ADA. 4 Moreno is

not disabled because of his limitations in the

major life activity of lifting.

B.

Moreno’s argument regarding the major life

activity of walking amounts to hi s testi m ony

that his needs to be more careful and cautious

when walking and cannot wal k as far as the

average person his age. Minor deviations from

the average person’s abilit y to walk do not rise

to the level of substantial limitations on one’s

abilit y to partake of this major life activity.

Talk v. Delta Airlines, Inc.

, 165 F.3d 1021,

1025 (5th Cir. 1999) (“It is clear, however,

that moderate diffic ult y experienced while

walking does not rise to the le vel of a

disability.”). Moreno is not disabled because

of his limitations in the maj o r life activity of

walking.

C.

Moreno also argues his knee injury renders

him disabled in that he is unable to engage in

the major life activity of climbing to the same

degree as is an average person. Moreno does

not offer any more definite explanation of how

he is limit ed in climbing. If he means merely

climbing that is attendant to walking, his ar

gument is foreclosed by T alk

. If he means

climbing in a more vigorous sense, that

argument has also been rejected by this circuit.

Rogers v. Int’l Marine Terminals, Inc. , 87

F.3d 755, 758 n.2 (5th Cir. 1996) (concluding

that climbing is not a major life activity). Moreno is not disabled because of his limitations

in the activity of climbing. D.

Finally, we turn to the major life activity of

working, but only after rejecting all other possible major life activities. App. 29 C.F.R.

§ 1630.2(j); D utcher v. Ingalls Shipbuildin g

, 53 F.3d 723, 726 n.10 (5th Cir. 1995). To be

substantially limit

ed in the major life activity of

working, a plaintiff must be precluded from a

“class of jobs” or “a broad range of jobs.” 29

C.F.R. § 1630.2(j)(3)(i); Sutton

, 527 U.S. 471,

491 (1999).

Moreno has not offered any evidence he is

unable to per fo rm either a class or a broad

range of jobs. Indeed, the summary judgment

evidence reveals he is currently employed as a

d eliveryman for an auto parts wholesaler and

also operates his own ice machine v ending

business. Moreno is not disabled because of

his limitations in the major life activity of

working.

V.

Moreno argue s t hat Pepsi “regarded” him

as disabled. To be regarded as disabled for

purposes of the ADA, the employer must believe the employee either

(1) Has a physical or mental impairment

that does not substantially limit ma j or

life activities but is treated by a covered

entity as constituting such limitation;

(2) Has a physical or mental impairment

that substantially limit s major life

activities only as a result of the atti tudes

of others toward such

impairment; [or]

(3) Has none of the impairments defined

in paragraphs (h) (1) or (2) of this

section but is treated by a covered entity

as having a

substantially limiting

impairment.

29 C.F.R. § 1630.2(l). Thus, for the employee 4 Ray v. Glidden Co.

, 85 F.3d 227, 229 (5th

Cir. 1996) (ho lding that inability regularly to

lift more than ten pounds did not substantially

limit the major life activity of lifting).6

to be “regarded a s” disabled, the employer

must have a perception of the employee’s disabilit y, t hat, if true, would constitute a

disabilit y. M urphy v. United Parcel Serv.

, 527

U.S. 516, 521-22 (1999 ); D upre v. Charter

Behavioral Health Sys., Inc. , 242 F.3d 610,

616 (5th Cir. 2001).

Moreno raises this “regarded as” argument

for the first time on appeal. We routinely treat

as waived those arg ument s advanced for the

first time on appeal. L ackey v. Joh nson , 116

F.3d 149, 152 (5th Cir . 1997); H ernandez v.

Hill Country Tel. Coop. Inc. , 849 F.2d 139,

142 (5th Cir. 1988). Although we forego this

waiver in extraordin ary cases, Moreno does

not present such a case. N

. Al amo Water

Supply Corp. v. City of San Juan, Tex. , 90

F.3d 910, 916 (5th Cir.1996).

Even were we to consider Moreno’s newlyraised argument, we would be compelled to

reject it . His “regarded as” argument stems

almost entirely from his subje ct ive belief that

Pepsi thought he had an ADA disability. He

supports this supposition by noting that Pepsi

participated in a d i sability proceeding before

the Texas Worker’s Compensation

Commission. Acknowledging that Moreno

ma y have been impaired for purposes of

worker’s compensation does not mean he

necessarily

was disabled for purposes of the

ADA. 5

The summary judgment evidenc e shows

that Pepsi allowed Moreno to work at a desk

job and then returned him to full duty status a few weeks after his knee surgery. That Swind ell asked Moreno to help him install the ice

machine cuts strongly against any implication

that Pepsi “regarded” Moreno as disabled.

Moreno is not disabled within the meaning of

the ADA, because his employer did not regard

him as having any impairment that rises to the

level of a disability under the ADA.

VI.

Moreno challenges his discharge on the

ground of national origin discrimination. 6 In

an EEOC “deferral state,” a charge of

discrimination must be filed with the EEOC

not mo re than 300 days after the alleged

adverse employment act ion. 7 42 U.S.C. §

2 0 00e-5(e)(1); Byers v. Dallas Morning News

, Inc

., 209 F.3d 419, 424 (5th Cir. 2000).

Moreno was terminated by Pepsi on May 28,

19 98; he filed a charge of discrimination on

September 7, 1999, 467 days after the

discharge.

Moreno’s natio nal origin claim is thus

barred unless he can show his init ial charge of

disabilit y discrimination, filed on November

23, 1998, t riggered his national origin claim.

Moreno not e s that he completed the blank

next to race with t he appropriate designation

(“Hispanic”) on this November 23 charge. His

init ial charge and his subsequent amendment

on January 11, 1999, make no mention of national origin discrimination, however.

Moreno relies entirely on Sanch ez v.

Standard Brands, Inc.

, 431 F.2d 455, 464 (5th

Cir. 1970), which held that failure to mark the

appropriate box on

the EEOC charge form

5 Cf

. C leveland v. Policy Mgmt. Sys. Cor p.

, 526 U.S. 795 (1999) (holding that disabilit y for

purposes of Social Se curity benefits is not

necessarily the same as disab ility for purposes of

the ADA). 6 42 U.S.C. § 2000e-2(a)(1).

7 Texas is a deferral state. S ee Huckaby v

. Moore , 142 F.3d 233, 238 (5th Cir. 1998).7

does not preclude a suit premised on that

theory of discrimination. S anchez further held

that a plaintiff’s out-of-time amendment to an

init ial charge could add an additional theory of

discrimination if the amendment contained

“mere clarificatio n and amplification of the

original charge.” I

d

. at 465. Where the outof-time amendment alleges a new the ory of

discrimination and adds new facts to support

that cha rge, the new theory of discrimination

is time-barred. H

ornsby v. Conoco

, Inc

., 777

F.2d 243, 247 (5th Cir. 1985). In other

words, the new theory of discrimination must

rely on the facts alle ged in the initial charge.

Id

.

Moreno’ s claim of national origin

discrimina t ion fails, because it is more

analogous to Hornsby than to Sanchez . His

amended EEOC charge o f national origin

discrimination alleges facts that have no

predicate in his init

ial charge. The fact

ual

narrative in the init

ial charge describes his

termination as stemming only from a disabilit y

or a perceived disability.

VII.

M oreno contends that the findings of the

Texas Workforce Commission awarding h i m

benefits should have res judicata effect in this

federal lawsuit. This issue was not presented

to the distr ict co urt and is thereby waived.

Hernandez, 849 F.2d at 142.

Were we to consider this a rgument, it

would be foreclosed by precedent. We give a

state agenc y t he same deference it would

receive in state court. Univ. of Tenn. v. Elliott

, 478 U.S. 788, 799 (1986). The Texas

Workforce Commission’s decision is entitled

to no deference in Texas state courts. T E X

. L AB

. C ODE A NN

. § 213.007 (Vernon 2001). 8

Moreno’s argument is without merit.

AFFIRMED.

8 The statute reads,

A finding of fact, conclusion of

law, judgmen t

, or final order

made under this subtitle is not

binding and may not be u s ed as

evidence in an action or

proceeding, other than an action

or proceeding brought under thi s

subtitle, even if the ac tion or

proceeding is between the same or

related pa r ties or involves the

same facts.

T EX

. L AB

. C ODE A NN

. § 213.007 (Vernon

2001).