* Pursuant 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this opinion should not be published and is not precedent except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 2, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 04-20695

Summary Calendar

_____________________

STEVE A. GALVAN,

Plaintiff - Appellant,

versus

THE CITY OF BRYAN, TEXAS,

Defendant - Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas, Houston

USDC No. 4:03-CV-1576

_________________________________________________________________

Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM: *

Steve A. Galvan was employed by the City of Bryan, Texas, from

1991 until he was discharged in June 2002. Galvan’s position as a

crew worker required him to ride on the back of a truck and load

leaves and yard clippings into the truck. In 2001, the City

Council decided to provide additional services to residents but did

not ap propriate funds for additional personnel. In order to

provide the services without additional personnel, the City

eliminated all of the crew worker positions, such as Galvan’s, and

upgraded them to “equipment operato rs”. It also required the2

equipment operators to become licensed commercial drivers. Galvan,

who has epilepsy and suffers from learning disabilities, was unable

to pass the tests required to obtain a commercial license, and was

therefore discharged.

He filed a complaint against the City under the Americans with

Disabilities Act and Title VII of t he Civil Rights Act of 1964,

alleging that the City discriminated against him because he is

disabled. The City moved for summary judgment. The parties

consented to proceed before a magistra te judge, who granted the

City’s motion. The court held that Galvan failed to present

evidence that he is disabled, and that, even assuming he is

disabled, he failed to establish that he was qualified for the job

of equipment operator. It also held that Galvan failed to exhaust

his administrative remedies under Title VII; Galvan does not appeal

that ruling.

Galvan argues on appeal t hat the magistrate judge erred by

concluding that he is not disabled and by concluding that a

commercial driver’s license was an essential function of the job.

The magistrate judge held that although Galvan’s epilepsy and

learning disabilities were im pairments, he had not presented any

summary judgmen t evidence to show that those impairments

substantially limited a major life activity. The court held

further that, even if Galvan were disabled, he still could not

preva il, because he did not present any evidence to show that he

was qualified for the job, because he failed to present any3

evidence to controvert the City’s evide nce that a commercial

driver’s license was an essential fun ction of the equipment

operator position.

Based on our de novo r eview of the record, the City was

entitled to summary judgment for the reasons stated in the

magistrate judge’s comprehensive, well-reasoned memorandum opinion.

The judgment is, therefore,

AFFIRMED.