* Pursua nt to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

February 1, 2006

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-61000

Summary Calendar

ROBERT C. WOODFORD,

Plaintiff-Appellant,

versus

GORDON R. ENGLAND, In his official capacity as

Secretary of the Navy,

Defendant-Appellee.

-------------------- Appeal from the United States District Court

for the Southern District of Mississippi

(1:02-CV-808)

--------------------

Before KING, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM: *

Defendant-Appellant Robert C. Woodford appeals the district

court’s grant of summary judgment for the defendant, Gordon R.

England, Secre tary of the Navy (Secretary), in Woodford’s suit

asserting claims under Title VII of the Civil Rights Act, the Age

Discrimination in Employment Act, and the Rehabilitation Act. On

appeal, Woodford chall enges only the district court’s grant of

su m mary judgment regarding his Disability Act claim of

discrimination on grounds of his al l eged physical disability.2

Woodford insists that there is at least a question as to whether he

suffers a disability from hearing loss. He further asserts that

there is also a question as to the extent that his hearing loss is

mitigated by wearing hearing aids, adding that undisputed evidence

showed that he was qualified for his job. F inally, he contends

that he has established that the true reason for his termination

was discrimination based on his hearing loss.

We review the record de novo. S ee Duckett v. City of Cedar

Pa rk, Tex. , 950 F.2d 272, 276 (5th Cir. 1992). For his

Rehabilitation Act claim, like a claim under the Americans with

Disabilities Act, Woodford is required to establish a prima facie

case by showing that he was (1) disabled, (2) qualified for the job

at issue, (3) subjected to an adverse employment action because of

his disability, and (4) replaced by an employee who was not

disabled. See McInnis v. Alamo Cmty. Coll. Dist. , 207 F.3d 276,

279-80 (5th Cir. 2000); Hainze v. Richards

, 207 F.3d 795, 799 (5th

Cir. 2000); 42 U.S.C. § 12133. To be disabled, Woodford must have

a physical impairment t hat substantially limits his ability to

perform at least one major life activity, such as hearing. S ee

Waldrip v. General Elec. Co.

, 325 F.3d 652, 654 (5th Cir. 2003); 29

C.F.R. § 1630.2(i).

It is not disputed that Woodford has suffered hearing loss.

The question is whether Woodford’s hearing is substantially limited

or significantly restricted. 29 C.F.R. § 1630.2(j)(1). As Woodford

averred in his affidavit that even when using h is hearing aid he3

has difficulty hearing, his affidavit creates a genuine issue of

material fact regarding whether he may in fact be disabled. S ee

Sutton v. United Air Lines, Inc.

, 527 U.S. 471, 482-83 (1999); Ivy

v. Jones , 192 F.3d 514, 516 (5th Cir. 1999).

That alone is not enough, however. Woodford also must show

that he was subjected to an a dverse employment action solely

because of his disability. S ee Soledad v. U.S. Dept. of Treasury

,

304 F.3d 500, 505 (5th Cir. 2002). The only evidence that Woodford

offered regardi ng the motivation for his firing was Elizabeth A.

Strickland’s affidavit which, he contends, shows that he was

terminated because of his hearing loss. Ms. Strickland did not,

however, aver that Woodford’s hearing difficulty had anything to do

with his termination; rather her affidavit suggests a belief that

Woodford’s termination was in retalia tion for filing a claim

related to his hearing loss.

Woodford has presented no evidence to show that he was

adversely treated “solely because of” his disability. S ee id.

Consequently, even if we assume arguendo that Woodford was disabled

within the meaning of the Rehabilitation Act, summary judgment for

the Secretary was still proper. S ee Bickford v. International

Speedway Corp.

, 654 F.2d 1028, 1031 (5th Cir. 1981). The district

court’s judgment is

AFFIRMED.4