IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

m 01-50186

_______________

JOHNNY MORENO,

Plaintiff-Appellee,

VERSUS

PEPSI-COLA METROPOLITAN BOTTLING COMPANY, INC.,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________

March 28, 2002

Before REAVLEY, SMITH, and DENNIS,

Circuit Judges,

JERRY E. SMITH, Circuit Judge:*

Johnny Moreno appeals a summary judgment entered in favor of Pepsi-Cola Metropolitan Bottling Company, Inc. (“Pepsi”), in this

title VII and Americans with Disabilities Act

(“ADA”) case. We affirm.

I.

Moreno, who is hispanic, had worked for

Pepsi since June 1986 as a field service mechanic in the marketing equipment management department. His duties involved installing and servicing cold beverage equipment in

the Kileen-Waco-Bryan area of Texas. By

1992, Moreno had attained the position of

master mechanic and was working under the

* 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determined that this opinion should not be published and is not precedent except under the limited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.
2

direct supervision of Billy Swindell, the marketing equipment manager. 

In June 1997, Moreno inured hisright knee

while installing a piece of equipment. He returned to work after thisincident but operated

under a restriction 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 operation, he performed administrative duties, then received

full-duty clearance and 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 ability

to perform his job.

In May 1998, Pepsi terminated Moreno,

citing hisinsubordination for refusing to install

an ice machine. The parties dispute Moreno’s

disciplinary track record before this incident.

Pepsi points to six acts of misconduct that,

coupled with the insubordination, justified the

discharge: A customer complaint relating to

Moreno’s failure to maintain the customer’s

equipment, the swapping of on-call duty, failure to 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 of a dispenser.1

 

Moreno responds to only some of these

allegations of misconduct. He admits to the

violation of the call-swapping procedure but

notes that the man he swapped with (a white

co-worker) was only reprimanded. As for the

failure to follow proper absence procedures,

Moreno contends he was never in violation of

the policy, because Pepsi never 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 the

building. Notably, he does not respond to the

allegations he wasreprimanded and suspended

for poor job performance while dealing directly with customers. 

The final incident precipitating Moreno’s

termination involved Swindell’s request that

Moreno install an ice machine for a customer.

Again, the parties dispute the facts. Moreno

avers he was asked to install a 700-pound machine himself, but Pepsi claims Moreno wasinformed that there were a technician and a

truck available to help with the installation.

When Swindelldiscovered themachine 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 parties 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 who

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

Cir. 1995).
3

II.

Moreno filed a charge of discrimination

with the Equal Employment Opportunity

Commission(“EEOC”)inNovember 1998 and

amended it in January 1999. He claims to

have amended the charge once again, in May

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

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

The EEOC issued a right to sue letter in

July 1999. Moreno claims to have sent a new

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

origin. Moreno sued in September 1999.

III.

Moreno offerstwo legaltheoriesto support

his argument that Pepsi discharged him unlawfully: a title VII claim based on national

origin discrimination and an ADA claim based

on limitations stemming from his knee injury.

The district court dismissed both claims on

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.” FED. R. CIV. P. 56(c). All inferences from the record must be construed in

the light most favorable to the non-movant.

Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587-88 (1986); Walker

v. Thompson, 214 F.3d 615, 624 (5th Cir.

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. Little v. Liquid Air Corp., 37

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

IV.

The ADA bars discrimination in employment against those with a disability who are

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

§ 12112(a). To establish a prima facie case, a

plaintiff must (1) have a disability, (2) be

otherwise qualified, and (3) be subject to adverse employment action because of the disability. Ivy v. Jones, 192 F.3d 514, 515 (5th

Cir. 1999). 

“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.” 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 implementing

the ADA. These include “caring for oneself,

performing manual tasks, walking, seeing,

hearing, speaking, breathing, learning, and

working;” also “sitting, standing, lifting, [and]

reaching.” 29 C.F.R. 1630.2(i); App.

§ 1630.2(i). 

2

 More specifically, an impairment is

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.

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

To be “substantially limited,” a plaintiff

must show an inability to perform one of the

listed life activities up to the standards of an

average person.3 The question whether a

plaintiffis disabled for purposes of the ADA is

a case-specific determination. Toyota Motor

Mfg., Inc. v. Williams, 122 S. Ct. 681 (2002).

In his brief, liberally construed, Moreno

claims he is either disabled or regarded assuch

in that he is substantially limited in the major

life activities of lifting, walking, climbing, and

working. We address these in turn.

A.

Moreno avers he is not able to lift in the

manner of an average person and thus is

disabled under the definitions laid out above.

Moreno’s statements as to specific limitations

on his ability to lift are scant. The only

concrete examples 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 himto

installsolo). The ADA does not posit Atlas as

the average person; Moreno’s inability to lift

more than a quarter ton has no relevance to

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

limitation would not 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

the general population can

perform; or

(ii) Significantly restricted as to

the condition, manner or duration

under which an individual can

performa particular major life activity 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 should

be considered in determining

whether an individual is

substantially limited in a major

life activity:

(i) The nature and severity of the

impairment;

(ii) The duration or expected

duration of the impairment; and

(iii) The permanent or long term

impact, or the expected permanent

or long term impact of or

resulting from the impairment.

(3) With respect to the major life

activity of workingSS

(continued...)

3

(...continued)

(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 themajor life activity

of working.

29 C.F.R. § 1630.2(j)(1),(2).
5

within the meaning of 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 his testimony

that his needs to be more careful and cautious

when walking and cannot walk as far as the

average person his age. Minor deviations from

the average person’s ability to walk do not rise

to the level of substantial limitations on one’s

ability 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 difficulty experienced while

walking does not rise to the level of a

disability.”). Moreno is not disabled because

of his limitations in the major 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 limited in climbing. If he means merely

climbing that is attendant to walking, his argument is foreclosed by Talk. 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); Dutcher v. Ingalls Shipbuilding,

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

substantially limited 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 perform either a class or a broad

range of jobs. Indeed, the summary judgment

evidence reveals he is currently employed as a

deliveryman for an auto parts wholesaler and

also operates his own ice machine vending

business. Moreno is not disabled because of

his limitations in the major life activity of

working.

V.

Moreno argues that 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 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]

(3) Has none of the impairments defined

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

section but istreated 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) (holding that inability regularly to

lift more than ten pounds did not substantially

limit the major life activity of lifting).
6

to be “regarded as” disabled, the employer

must have a perception of the employee’s disability, that, if true, would constitute a

disability. Murphy v. United Parcel Serv., 527

U.S. 516, 521-22 (1999); Dupre 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 arguments advanced for the

first time on appeal. Lackey v. Johnson, 116

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

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

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

waiver in extraordinary cases, Moreno does

not present such a case. N. Alamo Water

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

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

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

reject it. His “regarded as” argument stems

almost entirely from his subjective belief that

Pepsi thought he had an ADA disability. He

supports thissupposition by noting that Pepsi

participated in a disability proceeding before

the Texas Worker’s Compensation

Commission. Acknowledging that Moreno

may 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 evidence 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 Swindell 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 more than 300 days after the alleged

adverse employment action.7 42 U.S.C. §

2000e-5(e)(1);Byers v. DallasMorningNews,

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

Moreno was terminated by Pepsi on May 28,

1998; he filed a charge of discrimination on

September 7, 1999, 467 days after the

discharge. 

Moreno’s national origin claim is thus

barred unless he can show his initial charge of

disability discrimination, filed on November

23, 1998, triggered his national origin claim.

Moreno notes that he completed the blank

next to race with the appropriate designation

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

initial charge and his subsequent amendment

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

Moreno relies entirely on Sanchez 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. Cleveland v. Policy Mgmt. Sys. Corp.,

526 U.S. 795 (1999) (holding that disability for

purposes of Social Security benefits is not

necessarily the same as disability for purposes of

the ADA).

6

 42 U.S.C. § 2000e-2(a)(1).

7 Texas is a deferral state. See Huckaby v.

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

does not preclude a suit premised on that

theory of discrimination. Sanchezfurther held

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

initial charge could add an additional theory of

discrimination if the amendment contained

“mere clarification and amplification of the

original charge.” Id. at 465. Where the outof-time amendment alleges a new theory of

discrimination and adds new facts to support

that charge, the new theory of discrimination

is time-barred. Hornsby v. Conoco, Inc., 777

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

words, the new theory of discrimination must

rely on the facts alleged in the initial charge.

Id.

Moreno’s claim of national origin

discrimination fails, because it is more

analogous to Hornsby than to Sanchez. His

amended EEOC charge of national origin

discrimination alleges facts that have no

predicate in his initial charge. The factual

narrative in the initial charge describes his

termination asstemming only from a disability

or a perceived disability. 

VII.

Moreno contends that the findings of the

Texas Workforce Commission awarding him

benefits should have res judicata effect in this

federal lawsuit. This issue was not presented

to the district court and is thereby waived.

Hernandez, 849 F.2d at 142.

Were we to consider this argument, it

would be foreclosed by precedent. We give a

state agency the 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. TEX.

LAB. CODE ANN. § 213.007 (Vernon 2001).8

Moreno’s argument is without merit.

AFFIRMED.

8

 The statute reads,

A finding of fact, conclusion of

law, judgment, or final order

made under this subtitle is not

binding and may not be used as

evidence in an action or

proceeding, other than an action

or proceeding brought under this

subtitle, even if the action or

proceeding is between the same or

related parties or involves the

same facts.

TEX. LAB. CODE ANN. § 213.007 (Vernon

2001).