1 42 U.S.C. § 12101 et seq

. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-10352

DOUGLAS C. HAMILTON,

Plaintiff-Appellant,

VERSUS

SOUTHWESTERN BELL TELEPHONE COMPANY,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Texas

March 23, 1998

Before JOLLY, DUHÉ, PARKER, Circuit Judges

DUHÉ, Circuit Judge

Douglas C. Hamilto n sued his former employer, Southwestern

Bell Telephone Company for discrimination under the Americans with

Disabilities Act 1 and for wrongful termination under Texas law. He

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

S outhwestern Bell. Because he fails to show a disputed issue of

material fact as to the existence of a disability as defined by the

Act, he does not meet the ADA’s threshold req uirement. He also

fails to show a disputed issue of fact that his firing was a result

of anything other than his egregious misconduct. We affirm the2

grant of summary judgment on both claims.

I.

Douglas C. Hamilton (“Hamilton”) had been an at-will employee

at Southwestern Bell Telephone Company (“BELL”) nea rly 20 years

when he was fired for his heated, on-the-job encounter with another

e mployee. He claimed that his firing was a violation of the

Americans with Disabilities Act of 1990 (“ADA”), or alternatively

was an unlawful discharge for refusing to participate in Project X,

a BELL procedure that he claims did not follow the Public Utilities

Commission (“PUC”) guidelines for utilities disconnections.

About four months before he was fired, Hamilton rescued a

drowning woman. For a time following the rescue, he experienced a

variety of mental disturbances and suffered “extreme fatigue” that

limited his ability to perform manual tasks, such as mowing his

lawn. He told his supervisor, Dennis Dorsey (“Dorsey”), that his

pastor thought these problems were Post Traumatic Stress Disorder

(“PTSD”) symptoms.

A month later, Hamilton verbally abused and struck a co-worker

(“the incident”) on the job. Dorsey referred Hamilton to BELL’s

Employee Assistance Program (“EAP”), where a social worker

concluded Hamilton was suffering from agitated depression and some

post-traumatic symptoms. The social worker referred him to a

private counselor; he was also evaluated by a psychiatrist, Babette

Farkas (“Farkas”). Both the social worker and Farkas reported

PTSD. During this counseling and evaluation period, BELL received

from members of Hamilton’s depart ment an anonymous letter that3

accused him of being a “disgusting, dangerous and abusive man and

manager.”

Hamilton, believing t hat his job pressures exacerbated his

PTSD, sought to reduce the stress he experienced in his position in

BELL’s revenue management department. He expressed concern about

participating in Project X, a project that di scontinued service,

without the usual 10-day notice, to minority customers whose

accounts were delinquent. He resisted participating in the project

because he believed that if he participated he could be personally

charged with committing a third degree felony. Although he claimed

to have drafted memoranda protesting Project X, no copies of the

correspondence exist.

After he was fired, Hamilton sued BELL. The district court

granted summa ry judgment on Hamilton’s ADA claim, finding no

genuine fact issue as to whether hi s medical condition

substantially limited any major life activities such that his PTSD

could be considered an impairment under the ADA. It also

determined that Hamilton failed to adduce any evidence showing BELL

fired him solely because of his disability. The district court

also granted summary judgment on the state unlawful discharge

claim, finding that there was no genuine issue as to whether BELL

fired Hamilton solely because he abandoned Project X. Hamilton now

appeals.

II.

We review a grant of summary judgment de novo

, applying the

same standard as the district court. G uillory v. Domtar2 Cf. Still v. Freeport-McMoran, Inc.

, 120 F.3 d 50, 51 (5th

Cir. 1997)(per curiam); T urco v. Hoechst Celanese Corp.

, 101 F.3d

1090, 1092 (5th Cir. 1996) (listing as the third element an

employment decision made solely because of the disability but never reaching an analysis of that element and citing Rizzo v. Children’s

World Learning Centers, Inc. , 84 F.3d 758 (5th Cir. 1996)(listing

as an element a decision made solely because of the disability but

later describing the necessary factual determination as whether an

adverse action was “taken because of her disability.” Id

. at 765.))

3 Rogers v. International Marine Terminal s, Inc. , 87 F.3d

755, 758 (5th Cir. 1996).

4 Industries, Inc. , 95 F.3d 1320 (5th Cir. 1996); Armstrong v. City

of Dallas

, 997 F.2d 62 (5th Cir. 1993). Summary judgment is proper

when no issue of material fact exists an d the moving party is

entitled to judgment as a matter of l aw. Fed. R. Civ. P. 56(c).

We review fact questions in the light most favorable to the

nonmovant and questions of law de novo

. D utcher v. Ingalls

Shipbuilding , 53 F.3d 723 (5th Cir. 1995).

III.

A.

To make out a prima facie case of discrimination under the ADA

Hamilton must show that (a) he has a disability; (b) he is a

qualified individual for the job in question; and (c) an adverse

employment decision was made because of his disability. S ee 42

U.S.C. § 12112(a). 2 The threshold issue in a plaintiff’s p rima

facie case is a showing that he suffers from a disability protected

by the ADA. 3 That statute confers a special meaning to the term

“disability”:

(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; or4 42 U.S.C. § 12112(2).

5 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).

6 29 C.F.R. § 1630.2(j).

7 Dutcher , 53 F.3d at 726.

8 29 C.F.R. § 1630.2(i) provides an illust rative listing of

activities.

5 (C) being regarded as having such an impairment. 4

Hamilton claims to suffer fromPTSD, which impairment,

standing alone, is not necessarily a disability contemplated by the

ADA. The statute requires an impairment that substantially limits

one or more of the major life activities.

The ADA defines neither “substantially limits” nor “major life

activities,” but the regulations promulgated by the EEOC under the

ADA provide significant guidance. Whether an impairment is

substantially limiting 5 i s 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. 6 The EEOC regulations adopt the same definition of major

lif e activities used in the Rehabilitation Act. 7 “Major life

activities means functions such as caring for oneself, performing

manual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working.” 89 Dutcher , 53 F.3d at 726, n. 10.

10 Id.

1 1 Rogers v. International Marine Terminals, Inc. , 87 F.3d at

759.

6 To determine if Hamilton has presented facts that indicate his

PTSD is an ADA disability, we first examine whether his PTSD is an

impairment that substantially limits any major life function other

than working. 9 Only if there is no evidence of impairment to the

other major life functions is an impairment to working considered. 10

The EAP counselor found that Hamilton presented some symptoms

of PTSD and Farkas, his treating psychiatrist, diagnose d PTSD.

Hamilton claims his PTSD caused him to overeat to the point of

being nauseous and having to go to bed, thus impairing his ability

to care for himself. He attributes his thoughts of suicide and

difficulty in concentration to the mental disorder. Additionally,

Hamilton described episodes of fatigue that made it difficult for

him to mow his lawn.

By his own admissio n, however, these impairments no longer

exist and the major life functions described by the EEOC

regulations have not been affected. We have noted that “[t]he EEOC

regulations provide that temporary, non-chronic impairments of

short duration, with little or no permanent long-term impact, are

usually not disabilities.” 11 Consequently, there was no evidence

off ered on which a jury could find that this impairment

substantially limited a major life activity other than working.

We now examine the effect Hamilton’s PTSD had on the major12 29 C.F.R. § 1630.2(j)(3)(i).

1 3 The existence of an i mpairment is to be determined without

r egard to mitigating measures such as medicines, or assistive or prosthetic devices. 29 C.F.R. §1630.2(h), App.

7 life activity of working. With regard to working,

[S]ubstantially 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

ina bility to perform a single, particular job does not

constitute a substantial limitation in the major life activity

of working. 12

Hamilton presents no evidence that his disability prevents him

from performing an entire class of jobs, or even a broad range of

jobs. The symptoms he reported included crying when faced with

stress, loss of temper, and an inability to deal with customer

relation issues. By his own admission, however, Hamilton’s

performance level w as “still ahead of his peers”. He worked his

regular hours until his termination except for the week he was

given off to adjust to his medication. 13 Although Dr. Farkas

dia gnosed Hamilton’s condition as PTSD, she did not identify

specific activities within his work environment that would be

substantially limited by PTSD. Her prognosis was that Hamilton

would be able to func tion normally without any medication.

Interestingly, despite his claim that stress in his job exacerbated

his PTSD and that the mental disorder made him unable to deal with

customer relations, Hamilton ran his own software distribution

business for almost a year after his discharge. He then became a

senior consultant with another firm.1 4 Burch v. Coca-Cola Co.

, 119 F.3d 305 (5th Cir . 1997) and

cases cited therein.

15 42 U.S.C. § 12102(2)(B).

1 6 42 U.S.C. § 12102(2)(C). “Is regarded as having such an

impairment” means that the individual:

(1) Has a physical or mental impairment th at does not

substantially limit major life activities but is treated

by a covered entity as constituting such limitation;

(2) Has a physical or men tal 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 paragraph (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)(1-3).

8 Hamilt on retains the ability to compete successfully with

similarly skilled individuals and no facts indicate that he is

u nable to perform a class of jobs nor a broad range of jobs. We

agree with the district court that any work impairment Hamilton may

have suffered was merely temporary; we have previously rejected

attempts to transform temporary afflictions into qualifying

disabilities. 14 We hold that he has failed to present evidence to

satisfy the threshold requirement of an ADA claim

- that he has an

impairment that substantially limits a major life activity.

Having no ADA recognized disability, Hamilton has thus failed

to provide summary judgment evidence that he has a record of such

an im pairment 1 5 that substantially limits a major life activity.

Under the third prong of an ADA disability, Hamilton must

produce sufficient summary judgment evidence to create an issue of

fact that BELL regarded him as having an impairment that

substantially limited a major life activity, whether o r not the

impairment existed. 16 BELL continued to employ Hamilton after he1 7 Burch v. Coca-Cola Co. , 119 F.3d 305, 322 (5th Cir. 1997);

Bridges v. City of Bossier , 92 F.3d 329, 332 (5th Cir. 1996).

9 reported his mental difficulties. He retained his managerial

responsibilities following the incident until BELL’s review of the

episode was completed. For an employer to regard an impairment as

substantially limiting work, the employer must regard an individual

as significantly restricted in his ability to perform a class or

broad range of jo bs. 1 7 Hamilton offered no evidence that BELL

regarded him to be so limited.

Hamilton presented no summary judgment evidence that workplace

attitudes caused his symptoms, an alternate requirement for a

finding that an employee is regarded as having an impairment.

Hamilton’s tearfulness, overeating, fatigue, and violent outbreak

against a co-employee did not occur o nly as a result of the

attitudes of others but were, he admits, symptomatic of PTSD. The

anonymous l etter submitted to BELL supervisors accusing him of

being violent was not the cause of Hamilton’s symptoms.

Also, there is no evidence presented that, although his PTSD

did not rise to the level of an ADA disability, BELL treated

Hamilton as having a substantially limiting impairment. In sum, we

find that the record is without support for Hamilton’s claim that

the mental impairments imposed by his PTSD are severe enough or of

sufficient duration to constitute a disability under the ADA.

B.

Furthermore, even if Hamilton were disabled, the ADA requires

that BELL’s adverse employment action be taken because of his18 42 U.S.C. § 12112(a).

1 9 Little v. Federal Bur eau of Investigation , 1 F.3d 255 (4th

Cir. 1993) (egregious behavior of an alcoholic, whether or not

disabled, provided grounds for dismissal).

10 disability. 18 Hamilton was not terminated b ecause of his disability

but rather because he violated BELL’s policy on workplace violence.

Several weeks after the rescue, Hamilton, slamming an office

door, angrily confronted a physically smaller female manager in

front of witnesses after she returned to work from a shopping trip.

In response to he r appeal to not speak to her in such a tone, he

slapped her hand down, yelling that she “get that f___ing finger

out of my face.” Additional profanity followed. He stormed from

the office but then returned to continue his abusive harangue,

yelling “You f i ng bitch!” BELL found this behavior to be an

egregious violation of its policies, suspended Hamilton at the

beginning of February and discharged him at the end of that month.

Although Hamilton argues that the incident was caused by his

PTSD, we are persuaded that the ADA does not insulate emotional or

violent outbursts blamed on an impairment. 19 An employee who is

fired because of outbursts at work directed at fellow employees has

no ADA claim. BELL had instituted its policy against workplace

violence, with provisions for suspension and dismissal for

“extremely severe” offenses, before H amilton’s misconduct. As a

BELL employee, Hamilton was held accountable for v iolating this

policy. BELL cited this conduct as its reason for firing Hamilton;

we do not regard this reason as pretextual merely because BELL20 Florida Steel Corp., v. NLRB

, 529 F.2d 1225, 1234 (5th Cir.

1 976) citing Corriveau & Routhier Cement Block, Inc. v. NLRB

, 410

F.2d 347, 350 (1st Cir. 1969).

11 failed to describe the misconduct as workplace violence until the

Texas Employment Commission hearing.

The cause of Hamilton’s discharge was not discrimination based

on PTSD but was rather his failure to recognize the acceptable

limits of behavior in a workplace environment. The nature of the

incident, shown by the record, presents a clear case in which

Hamilton was fired for his misconduct in the workplace. We adopt

for an ADA cl aim the well-expressed reasoning applied in the

context of a protected activity-retaliatory discharge claim: the

rights a fforded to the employee are a shield against employer

retaliation, not a sword with which one may threaten or curse

supervisors. 2 0 Hamilton can not hide behind the ADA and avoid

accountability for his actions.

C.

Having decided above that the reason for Hamilton’s discharge

was his egregious and violent behavior, we find it unnecessary to

further address his claim of unlawful discharge.

IV.

For the reasons cited above, we affirm the grant of summary

judgment.

AFFIRMED.