1 42 U.S.C. §§ 12101-12213 (Supp. III 1991). United States Court of Appeals,

Fifth Circuit.

No. 94-60499

Summary Calendar.

Tamela J. DUTCHER, Plaintiff-Appellant,

v.

INGALLS SHIPBUILDING, Defendant-Appellee.

June 5, 1995.

Appeal from the United States District Court for the Southern District of Mississippi.

Before POLITZ, Chief Judge, JOLLY and BENAVIDES, Circuit Judges.

POLITZ, Chief Judge:

Tamela J. Dutcher appeals an adverse summary judgment in her suit against her former

employer, Ingalls Shipbuilding, Inc., for discrimination under the Americans with Disabilities Act. 1

We affirm.

Background

On November 27, 1989 Dutcher sustained serious injury to her right arm in a gun accident.

Afte r extensive repair surgery, Dutcher began training as a welder, hoping thereby to prevent

deterioration in the use of her arm. In July of 1991 she completed welding school and was hired by

Ingalls.

Ingalls init ially assigned Dutcher to the "bay area," a job requiring welders to climb as much

as 40 feet to reach their work. On her second day of work Dutcher requested a transfer to the fab

shop, an assignment invo lving little or no climbing, because of difficult ies she experienced due to the

injury to her arm. The request was denied because she had insufficient seniority to transfer to a fab

shop position.

During the following month Dutcher worked in the bay area without any time off because of

problems with her arm. At the end of that month, however, she secured a transfer to the fab shop2

Armstrong v. City of Dallas, 997 F.2d 62 (5th Cir.1993). because of her father's influence with the welding superintendent. She worked as a welder in the fab

shop, or similar assignments, until laid off as part of a large-scale reduction in force in May 1992.

Ingalls recalled Dutcher on Septemb er 8, 1992 at which time she was told to report to the

infirmary for a pre-employment physical. She advised the examining doctor that the condition of her

arm prevented her from climbing and that she needed a job which did not require such. The doctor

gave Dutcher the requested job restriction. Ingalls then advised Dutcher that it could not then employ

her in light of the job restriction.

Dutcher contacted Ingalls' labor relations office which asked her to provide a current medical

report on her arm. Five weeks later she returned with the requested information. Ingalls asked for

an explanation of the delay and while reviewing the proffered reasons experienced another reduction

in force resulting in every welder in Dutcher's job classification being laid off.

On June 21, 1993 Dutcher filed the instant action, asserting that Ingalls violated the ADA by

refusing reinstatement in September of 1992 to her job in t he fab area. The district court entered

summary judgment in favor of Ingalls, finding that the impairment of Dutcher's arm did not qualify

as a "disability" under the ADA. Dutcher timely appealed.

Analysis

We review a grant of summary judgment applying the same standard as the district court. 2

Summary judgment is proper when no issue of material fact exists and the moving party is entitled

to judgment as a m at t er of law. Fact questions are viewed in the light most favorable to the

nonmovant and questions of law are reviewed de novo.

Dutcher contends that the district court erred when it concluded that she does not have an

ADA-qualified disabilit y. She maintains that when the summary judgment evidence on the extent of

her disabilit

y is viewed in the most favorable light that there is a genuine issue of material fact whether

her injured arm qualifies as a disability.

The ADA prohibits discrimination "against a qualified individual with a disabilit y because of

the disabilit

y of such individual in regard to job application procedures, the hiring, advancement, or3 42 U.S.C. § 12112(a).

4 42 U.S.C. § 12102(2). We note that this definition of "disability" is substantially equivalent to

that in the Rehabilitation Act, 29 U.S.C. §§ 701-797 (1988, Supp. III 1991 & Supp. V 1993).

See Chandler v. City of Dallas, 2 F.3d 1385, 1391 n. 18 (5th Cir.1993), cert. denied, --- U.S. ----

, 114 S.Ct. 1386, 128 L.Ed.2d 61 (1994).

5 A physical or mental impairment is defined as:

(1) 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; or

(2) Any mental or psychological disorder, such as mental retardation,

organic brain syndrome, emotional or mental illness, and specific learning

disabilities.

29 C.F.R. § 1630.2(h)(1), (2).

6 Bolton v. Scrivner, Inc., 36 F.3d 939 (10th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct.

1104, 130 L.Ed.2d 1071 (1995); see Chandler. discharge of employees, employee compensation, job training, and other terms, co nditions, and

privileges of employment." 3 The term "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. 4

The ADA restricts the meaning of impairment; the parties, however, do not dispute that Dutcher's

gun accident left her with a permanent impairment w it hin the meaning of the statute. 5 Dutcher,

however, misconstrues the significance of this finding. A physical impairment, standing alone, is not

necessarily a disability as contemplated by the ADA. The statute requires an impairment that

substantially limits one or more of the major life activities.

The ADA defi nes neither "substantial limits" nor "major life activities," but the regulations

promulgated by the EEOC under the ADA provide significant guidance. These regulations adopt the

same definition of major life activities as used in the Rehabilitation Act. 6 "Major life activities means

functions such as caring f o r o neself, performing manual tasks, walking, seeing, hearing, speaking,7 29 C.F.R. § 1630.2(i). This listing, however, is not intended to be exhaustive. Other major

life activities could include lifting, reaching, sitting, or standing. 29 C.F.R. § 1630, Appendix to

Part 1630—Interpretive Guidance on Title I of the Americans with Disabilities Act, § 1630.2(1).

8 To substantially limit 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 perform a particular major life activity as compared to the condition,

manner, or duration under which the average person in the general population can

perform the same major life activity.

29 C.F.R. § 1630.2(j)(1)(i), (ii).

9 29 C.F.R. § 1630, App., § 1630.2(j).

10 42 U.S.C. § 12102(A); 29 C.F.R. § 1630, App., § 1630.2(j) ("If an individual is not

substantially limited with respect to any other major life activity, the individual's ability to perform

the major life activity of working should be considered. If an individual is substantially limited in

any other major life activity, no determination should be made as to whether the individual is

substantially limited in working."). breathing, learning, and working." 7 Whether an impairment substantially limits 8 a major life activity

is determined in light of (1) the nature and severity of the impairment, (2) its duration or expected

duration, and (3) its permanent or expected permanent or long-term impact. 9

We first examine whether Dutcher's impairment substantially limit s a major life activity other

than working. 10 Despite assertions to the contrary, both her deposition testimony and that of her

physician inform that Dutcher can "take care of the normal activities of daily living." It is undisputed

that she can feed herself, drive a car, attend her grooming, carry groceries, wash dishes, vacuum, and

pick up trash with her impaired hand. In her deposition testimony Dutcher admits that she has trained

herself to do "everything

... [she is] supposed to do" and that she can do "all of the basic things" she

needs to do in life with her arm. Her medical expert testified that Dutcher can do lifting and reaching

as long as she avoids heavy lift ing and repetitive rotati onal moveme nt s. While her medical expert

offered the opinion that her arm is impaired, this fact, as we noted a bove, is not di sputed. More

relevant to today's inquiry is that there was no evidence offered on which a jury could find that this11 Dutcher contends that her deposition also set forth that she has difficulty picking up little

things from the floor, that she has trouble holding things up high or real tight for long periods of

time, and that she sometimes has problems turning the car's ignition. We are persuaded that a jury

could not find that her impairment substantially limits major life activities on this basis. Cf.

Coghlan v. H.J. Heinz Co., 851 F.Supp. 808 (N.D.Tex.1994) (denying summary judgment in light

of evidence that impairment affected eating and sleeping).

12 29 C.F.R. § 1630.2(j)(3)(i).

13 We note that three additional factors can be considered when determining whether an

impairment substantially limits the major life activity of working. Those are:

(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 not utilizing similar training, knowledge, skills or abilities,

within that geographical area, from 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)(ii)(A)-(C). Dutcher provided no such evidence in opposing

Ingalls' summary judgment motion.

14 That Chandler

construed provisions of the Rehabilitative Act is of no moment; the

substantial equivalency of the definition of disability under the Rehabilitation Act and the ADA

strongly suggests that prior constructions of the Rehabilitation Act should be generally applicable impairment substantially limited a major life activity. 11

Having concluded that Dutcher failed to present summary judgment evidence of a substantial

limitation on a major life activity other than worki ng, we turn to her strongest argum ent: Ingal

l s'

actions demonstrate that her impairment affects the major life activity of working. With regard to the

activity of working:

[S]ubstantially limits means significantly restricted in the abilit y to perform either a class of

j o bs o r a broad range of jobs in various classes as compared to the average person having

comparable training, skills and abilit ies. The inability to perform a single, particular job does

not constitute a substantial limitation in the major life activity of working. 12

Dutcher presents no evidence that her disabilit y prevents her from performing an entire class of jobs. 13

Her experience in the fab shop prior to her first layoff demonstrates that she can work as a welder;

her injured arm ad versely affects only the functioning in a welding position requiring substantial

climbing. As we noted in C handler, 14 the inabilit

y to perform one aspect of a job while retaining thein construing the ADA definition of "disability." See Bolton, 36 F.3d at 943 ("The legislative

history of the ADA indicates that "Congress intended that the relevant caselaw developed under

the Rehabilitation Act be generally applicable to the term "disability" as used in the ADA.' ")

(quoting 29 C.F.R. § 1630, App., § 1630.2(g) (citing legislative history) (citations omitted)).

15 Chandler

(citing with approval Elstner v. Southw estern Bell Tel. Co., 659 F.Supp. 1328

(S.D.Tex.1987), aff'd, 863 F.2d 881 (5th Cir.1988) (unpublished), where court held that service

technician with impaired knee that prevented him from climbing utility poles was neither

handicapped nor regarded as such within the meaning of the Rehabilitation Act because he could

still perform work that did not require climbing).

16 Jasany v. United States Postal Service, 755 F.2d 1244, 1249 n. 3 (6th Cir.1985)

(interpreting Rehabilitation Act).

17 42 U.S.C. § 12102(B).

18 29 C.F.R. § 1630.2(k).

19 42 U.S.C. § 12102(2)(C). "Regarded as having such an impairment" means that the

individual:

(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 abilit y to perform the work in general doe s no t amo unt t o substantial limitation of the activity of

working. 15 "An impairment that affects only a narrow range o f jo bs can be regarded either as not

reaching a major life activity or as not substantially limit ing one." 16 Thus, we conclude that Dutcher

failed to provide summary judgment evidence that her impairment substantially limited a major life

activity.

Dutcher also fails to raise a genuine question of fact about whether she has a disabilit y under

the ADA because she has a record of an impairment that substantially limit s a major life activity. 17

There is no summary

judgment evidence of such; similarly, there is no evidence that she had a

"history of, or has been misclassifi ed as having, a mental or physical impairment that substantially

limits one or more major life activities." 18

Dutcher might have qualified as disabled under the ADA if she could have provided sufficient

summary judgment evidence that she was regarded by Ingalls as having an impairment t hat

substantially limit

ed a major life activity, whether she actually had such an impairment or not. 19 The(3) Has none of the impairments defined in ... [29 C.F.R. § 1630.2(h) ] but is treated by a covered

entity as having a substantially limiting impairment.

29 C.F.R. § 1630.2(1)(1)-(3).

20 See Forrisi v. Bow en, 794 F.2d 931, 935 (4th Cir.1986) ("The statutory reference [in the

Rehabilitation Act] to a substantial limitation indicates instead that an employer regards an

employee as handicapped in his or her ability to work by finding the employee's impairment to

foreclose generally the type of employment involved."). uncontroverted facts, however, are that Ingalls continued to emplo y her as a non-climbing welder

after her init

ial transfer out of the bay area—the transfer which she claims put them on notice of her

impairment. Dutcher concedes in her brief that Ingalls denied her a position solely because she could

no t climb; she does not suggest that she was denied a welding job because of a belief t hat her

impaired arm would prevent her from performing adequately the welding function. 20

Moreover, Dutcher offers no summary judgment evidence to controvert Ingalls' evidence that

no non-climbing welding positions were available when she was denied reinstatement. Accordingly,

the district court properly found that Ingalls did not deny Dutcher any available welding position on

the basis of her impairment. We perforce conclude t hat , o n t hese facts, a jury could not find that

Ingalls regarded Dutcher as having a disability as contemplated by the ADA.

The judgment appealed is AFFIRMED.