IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 02-10089

Summary Calendar

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ALBENJAMIN BLANKS,

Plaintiff-Appellant,

versus

SOUTHWESTERN BELL COMMUNICATIONS, INC., individually

and doing business as Southwestern Bell, doing business as SBC

Operations, Inc., doing business as Southwestern Bell Telephone

Company; SOUTHWESTERN BELL TELEPHONE COMPANY,

individually and doing business as Southwestern Bell Telephone

Company of Texas, doing business as Southwestern Bell Services,

doing business as Southwestern Bell Telephone Company, doing

business as Southwestern Bell,

Defendant-Appellee.

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Appeal from the United States District Court

For the Northern District of Texas

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November 4, 2002

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

CLEMENT, Circuit Judge:

Appellant, who is HIV positive, alleges that his former employer, S outhwestern Bel l

(“SWB”), failed to accommodate him as required by the Americans with Disabilities Act of 1990

(“ADA”). 42 U.S.C. § 12101 e t seq. Appellant further alleges that appellee constructively

discharged him from the company. The district court found that, viewing the evidence in the light2

most favorable to the appellant, there was no triable issue of fact to show: (1) that appellant’s HIV

status qualified him as disabled under the ADA; (2) that appellee failed to offer appellant reasonable

accommodation; or (3) that appellee constructi vely discharged appellant. Because we conclude

Blanks was not a qualified individual with a disability for purposes of the ADA, we affirm.

I. FACTS AND PROCEEDINGS

SWB employed appellant, Albenjamin Blanks (“Blanks”), from 1977 until June 1997. Blanks

h eld several positions in the company, eventually working as a residential custom er service

representative (“CSR”) from 1992 to 1996. In 1996, Blanks took short-term medical disability for

depression and work-related stress. While on leave in November 1996, doctors diagnosed Blanks

with HIV and he sought treatment for the disease.

Blanks received a medical release to return to work. In granti ng the rel ease, the doctor

recommended that Blanks not work in CSR because dealing with belligerent customers on a daily

basis had contributed to his earlier stress and depression. For several months in early 1997, SWB and

Blanks attempted to agree upon an appropriate company position. SWB offered Blanks his earlier

position as a supplies attendant, but he could not accept the offer because recent hemorrhoid surgery

prevented him from doing the required lift ing. Blanks requested an internal CSR position, which he

thought would be less stressful. SWB denied his request, but eventually offered Blanks a position

as a general clerk at a salary approximately $100 less per week than his previous CSR position.

Blanks accepted the job and worked for approximately two weeks in June before submitting a letter

of resignation on June 18, 1997, in which he stated that he could not continue to support his family

due to the pay cut associated with the clerk position.

Blanks filed a charge of disabilit y discrimination with the Texas Commission on Human Rights3

(“TCHR”) on September 8, 1997. Blanks received his right-to-sue letter and filed suit in t he

Northern District of Texas. The court grant ed summary judgment to SWB. In a well-reasoned

memorandum opinion by Judge Fitzwater, the court found that Blanks failed to raise a genuine issue

of material fact to show: (1) that he qualified for disabilit y status under the ADA; (2) that SWB failed

to accommodate him; or (3) that he was constructively discharged.

II. STANDARD OF REVIEW

We review the district court’s summary judgment rulings de novo

, applying the same standard

as the district court. W

yatt v. Hunt Plywood Co., Inc.

, 297 F.3d 405, 408 (5th Cir. 2002). The Court

may grant summary judgment where there is “no genuine issue as to any material fact” and the

moving party is entitled to judgment as a matter of law. F E D

. R. C IV

. P. 56(c). The Court

determines the materiality issue according to the substantive law of the case. S ee Anderson v. Liberty

Lobby

, 477 U.S. 242, 248 (1986). In making the ultimate determination of whet her summary

judgment was proper, the Court reviews the facts, and all inferences drawn from those facts, in the

light most favorable to the party opposing the motion. S ee Jurgens v. EEOC

, 903 F.2d 386, 388 (5th

Cir. 1990).

III. ANALYSIS

A. Blanks’ Status Under the ADA

To establish a prima facie case for discrim inat io n under the ADA, a plaintiff must be a

qualified individual with a disabilit y. M ason v. United Airlines

, 274 F.3d 314, 316 (5th Cir. 2001).

The term “disabilit y” under the ADA means: “(A) a physical impairment that substantially limit s one

or more of the major life activities o f such individual; (B) a record of such an impairment; or (C)

being regarded as having such an impairment.” 42 U.S.C. § 12102(2).4

1. Actual Disability

In determining whether an individual’ s HIV st at us qualifies as a disability under the first

prong, we examine three factors: (1) whether the HIV infection is a physical impairment; (2) whether

appellant relies on a

part icular major life activity under the ADA; and (3) whether the impairment

substantially limit s the major life activity. S ee Bragdon v. Abbott

, 524 U.S. 624, 631 (1998). Major

life activities may include “[a]ny 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.” S utton v. United Airlines, Inc.

, 527 U.S.

471, 479-80 (1999). The Supreme Court has held that asymptomatic HIV qualifies as a physical

impairment from the moment of infection, Bragdon

, 524 U.S. at 637, and that HIV substantially limit s

the major life activity of reproduction. Id. at 647. Accordingly, an HIV-positive person who shows

that he or she is substantially limit ed in the major life activity of reproducti on is entitled to protecti on

under the ADA. Id.

Although we consider Blanks physically impaired by his HIV status, id. at 637, he fails to cite

in his brief or develop in the record how any of his major life activities are impaired. Specifically,

Blanks fails to assert that his HIV status substantially impaired his major life activity of reproduction.

Blanks testified that after his wife gave birth to their daughter in the early 1990's–long before SWB’s

alleged discrimination–the couple decided not to have any more children and his wife underwent a

procedure to prevent her from having any more children. 3 R. at 415-16. Because Blanks does not

want to have any more children, and because he fails to assert any facts to the contrary, he does not

raise a triable issue of fact to indicate that his HIV status substantially limited his major life activity5

of reproduction. S ee Gutwaks v. American Airlines, Inc.

, No. 3:98-CV-2120-BF, 1999 WL 1611328

(N.D. Tex. Sept. 2, 1999) (holding that plaint iff who did not want to have children and who did not

allege that his other major life activities were impaired was not qualified to recover under the ADA).

If an individual is not substantially lim it ed with respect to any other major life activity, the

Court may consider whether the individual is substantially limit ed in the major life activity of working.

Dutcher v. Ingalls Shipbuilding

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

in the major life activity of wo rking, o ne must be “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.” 29 C.F.R. § 1630.2(j)(3). While an individual need

not be completely unable to work, one is not substantially limit ed in working if he or she is unable to

perform a single job or a narrow range of job s. See id . In t his case, although Blanks preferred a

customer service position, he made it clear in the record that he was willing to do nearly any job that

paid the same as the residential CSR position. He maintains that his HIV status only substantially

affected his ability to perform his former position as residential CSR. Because Blanks’ HIV status

only precluded him from performing a single job, he cannot be considered as substantially limit ed in

the major life activity of working. As such, Blanks does not qualify as disabled under the first prong

of the ADA.

2. “Record of” Disability

The second prong of the ADA entitles a plaint iff to protecti on if he or she can show that both:

(1) the plaint iff

has a reco rd o r history of impairment; and (2) the impairment limits a major life

activity. D upre v. Charter Behavioral Health Systems of Lafayette, Inc.

, 242 F.3d 610, 615 (5th Cir.

2001). Although an individual may show that he or she has a record of impairment, if he or she fails6

to show that the impairment is substantially limit ing, the individual may not qualify as disabled under

this prong. S ee Sherrod v. American Airlines, Inc.

, 132 F.3d 1112, 1121 (5th Cir. 1998). While

t here are sufficient facts to allege that Blanks had a record of impairment, he may not qualify as

disabled under the “record of” prong because he failed to raise a genuine issue of fact to show that

he was substantially limited in a major life activity. Id.

3. “Regarded As” Disabled

An individual may also qualify for protecti on under the ADA if he or she is “regarded as”

disabled by his or her employer. An emplo yee may be “regarded as” disabled if he or she “has an

impairment which is not substantially l imiting but which the employer perceives as constituting a

substantially limit

ing impairment.” B ridge s v. Bossier , 92 F.3d 329, 332 (5th Cir. 1996). If the

employer excludes the impaired employee from a broad range of jobs, the employee is “regarded as”

disabled under the ADA. See id. at 334. If the employee is merely excluded from a narrow range

of jobs, then he or she is not “regarded as ” disabled under this prong. I d. (asserting that a “broad

range” implies more than two job types).

Blanks failed to allege sufficient facts to allow a reasonable trier of fact to conclude that he

may have been “regarded as” disabled by SWB. The only proof he puts forth is a statement by a

coordi nator of his return to work that Blanks “had a permanent disability that would never allow

[Blanks] to work as a customer service representative at Sout hwestern Bell.” 3 R. at 404. Thi s

statement, even when viewed in the light most favorable to Blanks, is not enough for a trier of fact

to conclu de t hat Blanks was regarded as disabled under the terms of the ADA. In fact, the

coordi nator later tried to place Blanks in several alternate positions, thereby making it clear that she

did not regard him as unable to perform a broad range of jobs–only the particular job of a customer7

service representative. S ee Sutton, 527 U.S. at 493 (holding that the position of a global airline pilot

is a single job, and restriction from that job does not constitute a substantial limitation on the major

life activity of working). Consequently, Blanks also fails the “regarded as” disabled prong o f t he

ADA and is not qualified for protection under the statute.

B. Blanks’ Accommodation and Constructive Discharge Claims

We conclude that Blanks is not entitled to ADA protecti on, he nce, we need not deci de

whether SWB failed to reasonably accommodate him or whether SWB constructively discharged him.

IV. CONCLUSION

Because plaint iff failed to raise a genuine issue of material fact suggesting that he is qualified

as disabled under the ADA as a result of his HIV status, we affirm the judgment of the district court.