*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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 98-30438

Summary Calendar

____________________

CHRISTOPHER MARIONNEAUX,

Plaintiff-Appellant,

v.

GROENDYKE TRANSPORT, INC,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Middle District of Louisiana 

(96-CV-7451)

_________________________________________________________________

January 18, 1999

Before KING, Chief Judge, and BARKSDALE, and STEWART, Circuit

Judges.

PER CURIAM:*

Plaintiff-appellant Christopher Marionneaux alleges that

defendant-appellee Groendyke Transport, Inc. violated the

Americans with Disabilities Act, 42 U.S.C. §§ 12101 - 12213,

because it terminated his employment as a commercial truck driver

once it discovered that he is an alcoholic. The district court

granted summary judgment in favor of Groendyke. We affirm. 

I. FACTUAL & PROCEDURAL BACKGROUND
2

Marionneaux was hired by defendant-appellee Groendyke

Transport, Inc. (Groendyke) as a commercial over-the-road truck

driver on May 2, 1995. On September 9, 1995, Marionneaux told

Groendyke that he was having a problem with alcohol and could not

pick up a load for which he had been dispatched. Groendyke

referred Marionneaux to its medical review officer for

evaluation. The officer recommended that Marionneaux check into

a detoxification center for five days and follow a twelve-month

recovery treatment program. Marionneaux checked himself into a

detoxification center on September 11, 1995. Groendyke

terminated Marionneaux’s employment that same day.

Marionneaux filed a petition for damages in the United

States District Court for the Middle District of Louisiana on

November 1, 1996, alleging that he was discriminated against

because of his alcoholism. Both parties filed motions for

summary judgment. The district court granted Groendyke’s motion

for summary judgment on April 29, 1998, and Marionneaux timely

appealed. 

II. DISCUSSION

Marionneaux argues that issues of material fact exist as to

whether Groendyke violated the Americans with Disabilities Act

(ADA) because (1) the evidence showed that he had a disability

that was covered by the ADA, (2) he was qualified for the

position of a commercial driver, and (3) Groendyke failed to
 

1 Marionneaux also alleges that Groendyke terminated him in

violation of company policy regarding drug and alcohol use. To

the extent that this argument seeks to impose liability on

Groendyke for breach of an employment contract, we consider the

argument waived because Marionneaux failed to make this argument

to the district court. See Burch v. Coca-Cola Co., 119 F.3d 305,

319 (5th Cir. 1997) (“This court will not consider on appeal a

claim not submitted to the district court.”), cert. denied, 118

S. Ct. 871 (1998); Butler Aviation Int’l, Inc. v. Whyte (In re

Fairchild Aircraft Corp.), 6 F.3d 1119, 1128 (5th Cir. 1993)

(holding that a litigant must press and not merely intimate an

argument to preserve it for appeal). To the extent Marionneaux

is arguing that the violation of the policy supports his claim

under the ADA, any violation is irrelevant because we find no

genuine issue of material fact as to Marionneaux’s disability,

see infra, and the argument is foreclosed by relevant caselaw. 

See Myers v. Hose, 50 F.3d 278, 284 (4th Cir. 1995) (“While the

[defendant] is free to exceed the requirements of the ADA in

fashioning its policies regarding disabled employees, such

policies are not the definitive source of the standard by which

reasonable accommodation is measured under federal law.”). 

3

reasonably accommodate his alcoholism.1 Groendyke argues that the

district court properly granted summary judgment because

Marionneaux failed to show he was a qualified individual with a

disability, because granting Marionneaux a leave of absence to

attend a detoxification clinic is not a reasonable accommodation

required under the ADA, and because Groendyke conclusively

demonstrated a legitimate, non-discriminatory basis for its

decision to terminate Marionneaux.

A. Standard of Review

We review the grant of summary judgment by a district court

de novo. See Tolson v. Avondale Indus., Inc., 141 F.3d 604, 608

(5th Cir. 1998). Summary judgment is appropriate if “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). The substantive law determines which facts are material
4

and the court must view these facts and the inferences to be

drawn from them in the light most favorable to the party opposing

the motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

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

The party moving for summary judgment bears the initial

burden of showing an absence of evidence to support the nonmoving party’s case. See Celotex Corp. v. Catrett, 477 U.S. 317,

322-27 (1986). Once this burden has been met, the non-moving

party can resist the motion for summary judgment by making a

positive showing that a genuine dispute of material fact exists. 

See Anderson, 477 U.S. at 250. The nonmovant must go beyond the

pleadings and designate specific facts showing that there is a

genuine issue of material fact for trial. See Celotex, 477 U.S.

at 324-25. Summary judgment may be affirmed on any ground that

was raised to the district court and upon which both parties had

the opportunity to present evidence. See Conkling v. Turner, 18

F.3d 1285, 1296 n.9 (5th Cir. 1994).

B. Marionneaux’s Disability

The ADA provides that “[n]o covered entity shall

discriminate against a qualified individual with a disability

because of the disability of such individual in regard to job

application procedures, the hiring, advancement, or discharge of

employees . . . and other terms, conditions, and privileges of

employment.” 42 U.S.C. § 12112(a). A “disability” includes “a

physical or mental impairment that substantially limits one or
5

more of the major life activities of such individual.” 42 U.S.C.

§ 12102(2). To prevail on an ADA claim, a plaintiff must show

that (1) he has a “disability,” (2) he is qualified for the job,

and (3) his employer made an adverse employment decision solely

because of his disability. See Hamilton v. Southwestern Bell

Tel. Co., 136 F.3d 1047, 1050 (5th Cir. 1998); Turco v. Hoechst

Celanese Corp., 101 F.3d 1090, 1092 (5th Cir. 1996).

Alcoholism is not a per se disability under the ADA. See

Burch, 119 F.3d at 316; see also Deas v. River West, L.P., 152

F.3d 471, 477-78 (5th Cir. 1998) (refusing to hold seizures

constitute a disability per se under the ADA based, in part, on

“numerous decisions of this and other courts declining to

recognize various impairments as disabilities per se and

emphasizing the importance of, and rationale behind, making

disability determinations on an individualized basis”); 29 C.F.R.

§ 1630.2(j), app. (“The determination of whether an individual

has a disability is not necessarily based on the name or

diagnosis of the impairment the person has, but rather on the

effect of that impairment on the life of the individual.”). For

a plaintiff suffering from alcoholism to prove he is disabled

under the ADA, the plaintiff must show he is substantially

limited in one or more major life activities, including

“functions such as caring for oneself, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and

working.” 29 C.F.R. § 1630.2(i); see Burch, 119 F.3d at 315-16;

29 C.F.R. § 1630.2(g). Furthermore, temporary incapacity
6

resulting from inebriation is not sufficient; “[p]ermanency, not

frequency, is the touchstone of a substantially limiting

impairment.” Burch, 119 F.3d at 316. 

Marionneaux contends in his appellate brief that he was

disabled under the ADA because he is an alcoholic and suffered

from “delirium tremens,” a physical impairment that limited his

ability to care for himself and to walk without falling down. 

Marionneaux filed an affidavit in support of his motion for

summary judgment on April 20, 1998, stating that he sought

treatment for alcoholism in September 1995 because he “started

shaking violently and had to drink alcohol to stop the violent

shaking.” Marionneaux also describes in this affidavit that “in

treatment I learned that I was having delirium tremens. As a

result I could no longer properly take care of myself, i.e., eat,

dress or think clearly.”

In deposition testimony taken June 18, 1997, however, the

following exchange occurred between Groendyke’s attorney and

Marionneaux:

Q (attorney): Does [your alcohol] problem restrict your 

ability to perform your daily tasks in any way?

A (Marionneaux): My daily tasks? Like the job I’m doing 

now?

Q: Like the job you’re doing; like walking, breathing, 

taking care of yourself.

A: No, I can -- I can walk and breathe. I can dress myself. 

I can go to work. But, what’s the -- it’s a big change

now. I have to do a lot of things. And there’s a lot

of things I used to do that I can’t do.

Q: Like what?

A: Well, I can’t go to places where people drinking alcohol. 

I have to attend meetings every day. Just -- just --

it’s not -- I’m not saying it’s worse, but it is

restrictions that you have. You have a different way

you have to live, you know. That you did -- you don’t
7

have as much freedom to go as many places, is what I’m

saying.

Q: But you are able to work?

A: Yeah.

Q: And you are able to perform most of your major life 

activities or all of your major life activities without

any problems?

A: Yeah, I think.

This deposition testimony clearly conflicts with Marionneaux’s

affidavit. Marionneaux states in his deposition testimony that

he was able to perform his major life functions, including

dressing and taking care of himself, without problems. His

subsequent affidavit, filed ten months later and one week before

oral argument on the summary judgment motions, states he could no

longer eat, dress, or think clearly.

We do not consider Marionneaux’s affidavit sufficient to

raise a genuine issue of material fact regarding Marionneaux’s

disability. “It is well settled that this court does not allow a

party to defeat a motion for summary judgment using an affidavit

that impeaches, without explanation, sworn testimony.” S.W.S.

Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996);

see Albertson v. T.J. Stevenson & Co., Inc., 749 F.2d 223, 228

(5th Cir. 1984) (“[T]he nonmovant cannot defeat a motion for

summary judgment by submitting an affidavit which directly

contradicts, without explanation, his previous testimony.”);

Darnell v. Target Stores, 16 F.3d 174, 176-77 (7th Cir. 1994).

Marionneaux offers no explanation for the conflict with his

deposition testimony, and his affidavit is therefore inadequate

to raise a genuine issue of material fact as to his disability. 

With no other evidence suggesting Marionneaux was disabled under
 

2 Groendyke also argues that the district court properly

granted summary judgment because Marionneaux was not qualified to

work as a commercial driver under regulations promulgated by the

United States Department of Transportation and that he was

terminated for a legitimate, non-discriminatory reason. Because

we find no genuine issue as to Marionneaux’s lack of disability

under the ADA, we do not reach these arguments. 

8

the ADA, summary judgment was appropriate.2 

III. CONCLUSION

For the foregoing reasons, we find that the district court 

correctly granted summary judgment in favor of defendantappellee. The judgment is AFFIRMED.