* Pursuant to 5 TH 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

May 5, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 02-50560

__________________________

STEVEN BAYLESS,

Plaintiff-Appellant,

versus

ORKIN EXTERMINATING COMPANY, INC., doing business as Orkin Pest Control,

Defendant-Appellee.

___________________________________________________

Appeal from the United States District Court

For the Western District of Texas

(No. W-01-CV-340)

___________________________________________________

Before SMITH, DENNIS, and CLEMENT, Circuit Judges:

PER CURIAM: *

A job applicant sued a prospective employer under the Americans with Disabilit ies Act claiming

the job applicant's allegedly uncontrolled diabetes was “regarded as” a disability by the prospective

employer, and thus that the prospective employer discriminated against the job applicant by refusing

to hire him. S ee 42 U.S.C. § 12102(2)(C). The job applicant appeals summary judgment in favor of

the prospective employer. We affirm.1 A blood glucose test measures the amount of glucose in blood at the given period of

time. Hemoglobin A1C is a red blood cell. A hemoglobin A1C test measures the amount of

glucose attached to red blood cells and provides an estimate of sugar levels over the past two or

three months.

2 I. FACTS AND PROCEEDINGS

Steven Bayless (“Bayless”) applied for a sales position with Orkin Exterminating Company, Inc.

(“Orkin”) in its Waco office on September 18, 1996. The sales position required driving, climbing

ladders, entering attics, and going under houses. Bayless was conditionally hired by the Waco office

manager, Mike Kelly (“Kelly”), but was also told that he needed to pass a medical exam, undergo

drug screening, and have a clean driv ing record. Orkin referred Bayless to a local physician of its

own selection for the medical tests. Bayless, who had had Type II Diabetes for 10 years and who

too k medicat io n daily to control it, passed the medical tests. The local physician indicated that

Bayless would be “able to perform essential job functions.” Bayless had a clean driving record.

As part of the hiring process, however, Orkin had another healthcare consultant, Dr. Nudelman,

in Atlanta, Georgia, review the local physician’s medical report on Bayless. Dr. Nudelman indicated

that before Bayless could be approved for hire, Bayless’ personal physician should be asked to supply

in wr it ing further information, including: (1) whether Bayless’ diabetes was “under control and/or

treatment,” and (2) t he result s from fasting blood glucose and hemoglobin A1C tests. 1 Bayless

requested his attending physician, Dr. Norris, to respond to Dr. Nudelman’s inquiries. Dr. Norris’

physician’s assistant (“PA”), Ann Landers, reported to Dr. Nudelman that Plaint iff’s diab etes was

being treated but was “not well controlled at this time,” and noted a blood sugar level of 312. After

receiving the PA’s report, Dr. Nudelman recommended against hiring Bayless at that time. Orkin did

not hire Bayless.3

Approximately two weeks later, Bayless sought a second opinion from Dr. Zia, another of his

attending physicians. Dr. Zia determined that Bayless’ diabetes was “under control”. Orkin did not

hire Bayless following Dr. Zia’s results. Instead, on November 18, 1996, a representative at Orkin’s

home office in Georgia, Molly Phillips (“Phillips”), indicated to Bayless that Dr. Nudelman wanted

to insure that Bayless’ diabetes was better controlled for six months. On the same day, Kelly told

Bayless he would hold the job open for 6 months. In December 1996, Bayless began working at the

Marlin HEB grocery store as a floor manager. Bayless stated in deposition testimony that he sent his

resume to HEB onl

y because he began to believe that Orkin was no longer considering him for

employment.

Despite his employment with HEB, Bayless contacted Kelly in the Waco office to inquire about

the position on March 8, 1997 (roughly six mo nt hs aft er his initial application with Orkin). Kelly

indicated that the job wa s st ill available and that Bayless would need to check with Phillips to

determine what was needed to show the d iabetes was under control. On that same day, Bayless

contacted Phillips, who indicated that Bayless needed a statement from an attending physician that

his diabetes was under control. Bayless did not re-apply to Orkin. Bayless continued to work for

HEB, where he obtained a supervisory position at some point.

Bayless mailed a handwritten note dated March 10, 1997, to the EEOC. The EEOC received the

note but did not forward a copy of Bayless’ letter to Orkin within 10 days of its receipt. Next,

Bayless completed an intake questionnaire, which the EEOC received on August 25, 1997. Finally,

Bayless filed a formal charge of discrimination with the EEOC on April 8, 1998, more than one year

after the final instance of all eged discrimination of March 8, 1997. The EEOC duly forwarded

Bayless’ charge to Or kin. While filing with the EEOC can effect a parallel filing with the Texas4

Commission on Human Rights (“TCHR”), the parties dispute whether such a dual filing was effected.

The EEOC determined there was reasonable cause to believe Orkin had discriminated against Bayless

under the ADA and issued a right to sue letter to Bayless.

Bayless sued in federal court. Orkin moved for summary judgment on two grounds: (1) Bayless

was not disabled for purposes of the ADA because Bayless was no t “regarded as” having an

impairment that substantially limit ed one or more majo r life activities, and (2) Bayless’ charge of

discrimination, filed with the EEOC on April 8, 1998, was more than 180 days (or 300 days, if

applicable) after the date of the alleged discrimination, and thus was un t imely. The district court

assumed, without deciding, t hat Bayless’ EEOC charge was timely. The district court granted

summary judgment in favor of Orkin, concluding that (1) there was no evidence Orkin “perceived”

Bay l ess’ uncontrolled diabetes would prevent him from working a broad class of jobs, and (2) the

uncontrolled diabetes did not substantially limit Bayless because it was a temporary impairment.

Bayless appeals.

II. STANDARD OF REVIEW

This Court reviews a motion for summary judgment d e novo

. S t. Paul Guardian Ins. Co. v.

Centrum GS Ltd. , 283 F.3d 709, 712-13 (5th Cir. 2002). The purpose of summary judgment is to

pierce the pleadings and assess the proof to determine if a genuine need for trial exists. Matsushita

Elec. Indus., Co. v. Zenith Radio Corp.

, 47 5 U.S. 574, 586-87 (1986). Summary judgment is

appropriate only 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. F E D

. R. C IV

. P. 56(c); see generally Celotex Corp. v. Catrett

, 477

U.S. 317, 322 (1986).

III. DISCUSSION5

As an init ial matter, Orkin attem

pts to pretermit Bayless’ lawsuit by challenging the t imeliness of

his filing of a charge with the EEOC. The district court assumed, without deciding, that the filing was

timely. We will do likewise.

The Americans with Disabilit ies Act of 1990 (“ADA”), 104 Stat. 328, 42 U.S.C.A. §§ 12101-213

(1995), prohibits covered entities, including prospective emplo yers, from discriminating against

individuals on the basis of their disabilities. 42 U.S.C. § 12112(a). The ADA defines disability as:

(A) a physical or mental impairment that substantially limit s 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.

42 U.S.C. § 12102(2); see also Toyota Motor Mfg., Ky., Inc. v. Williams

, 534 U.S. 184, 193 (2002).

To present a p rima facie case of discrimination under the ADA, a plaint iff must show h e is a

“qualified individual with a disability and that the negative employment action occurred because of

the disability.” Sherrod v. Am. Airlines, Inc. , 132 F.3d 1112, 1119 (5th Cir. 1998).

Bayless contends he satisfies the definition of disabilit y because he was “regarded as” having a

disabilit y by Orkin. To qualify under the “regarded as” definition of disability, a plaintiff must show

either that: (1) a covered entity mistakenly believes that a perso n has a physical impairment that

substantially limit s one or more major life activities, or (2) a covered entity mistakenly believes that

an actual, no nlimit

ing impairment substantially limi t s o ne o r more major life activities. S utton v.

United Airlines, Inc. , 527 U.S. 471, 491 (1999). This Court has recognized a third way to qualify

under the “regarded as” definition of disability: an impairment can be substantially limit ing because

of the atti tudes of others toward such an impairment. S ee McInnis v. Alamo Cmty. Coll. Dist.

, 2076

F.3d 276, 281 (5th Cir. 2000) ; Sherrod

, 132 F.3d at 1221; see also 29 CFR § 1630.2(l)(1)

- (3)

(2002 ). Bayless does not commit to any one of these showings of “regarded as”, but suggests he

satisfies at least one, and perhaps all, of them.

Under any of the three showings, a plaint iff must also prove that the perceived impairment, if it

existed as perceived by a covered entity, “substantially limit s” one or more “major life activities”. S ee

Sutton

, 527 U.S. at 490-92 (both); McInnis

, 207 F.3d a t 281. We assum e a rguendo that Orkin

regarded Bayless’ diabetes as a limitation on his abilit y to perform jobs that require driving, climbing,

and heavy lift ing and consider whether this impairment, if it existed as Orkin perceived it, would be

an actual disability.

A.

On appeal, Bayless contends Orkin regarded him as limit ed in the major life activity of working.

Working is a major life activity according to the EEOC. 29 CFR § 1630.2(i) (2002) (listing major

life act ivities, including “caring for oneself, performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning, and working”). The Supreme Court has neither endorsed nor rebuffed

the EEOC’s defi ni

ti on. S ee Sutton

, 527 U.S. at 479. Instead, the Court has assumed without

deciding that working is a major life activity. M urphy v. United Parcel Service

, 527 U.S. 516, 523

(1999) (“As in Sutton

. . ., we assume, arguendo

, that the [EEOC] regulations regarding the disabilit y

determination are valid.”); see also Toyota

, 534 U.S. at 200 (“Because of the conceptual difficult ies

inherent in the argument that working could be a major life activity, we have been hesitant to hold

as much, and we need not decide this difficult question today.”).

Like the Supreme Court in Sutton

, Murphy

, and Toyota

, we will assume without deciding that

working is a major life activity. See

, e.g.

, Mason v. United Air Lines, Inc.

, 274 F.3d 314, 317 (5th7

Cir. 2001) (citing the EEOC’s list of major life activities and assumin g wo rking is a major life

activity).

B.

Although the ADA does not define “substantially limit s,” it appears to have at least two

dimensions: severity and duration.

Supreme Court precedent states that “substantially” suggests “considerable” or “specified to a

large degree.” S utton

, 527 U.S. at 491. When the major life activity at issue is working, the Supreme

Court requires “at a minimum, that plaint iffs allege they are unable to work in a broad class of jobs.”

Id. at 491

.

To be substantially limited in the major life activity of working, then,

one must be precluded from more than one type of job, a specialized

job, or a particular job choice. If jobs utilizing an individual’s skills

(but perhaps not his or her unique talents) are available, one i s not

precluded from a substan t ial class of jobs. Similarly, if a host of

different types of jobs are available, one is not precluded from a broad

range of jobs.

Id. at 492. At most, Bayless asserts that Orkin believed Bayless ineligible for all jobs requiring

driving, climbing, and heavy lifting. No cases discuss whether such jobs qualify as a broad class of

jobs. In this case, Bayless secured a position with HEB within several weeks of his non-employment

with Orkin, which suggests a “host of different types of jobs” were available to Bayless and thus that

he was not precluded from a broad class of jobs. Id.

In regard to duration, the Supreme Court has noted that “substantial limitation” requires that an

“impairment’s impact must also be permanent or long- term,” T oyota

, 534 U.S. at 198, and that

corrective measures must be taken into account when evaluating an individual’s impairment. Sutton

,

527 U.S. at 482, 488-89; see also Pollard v. High’s of Baltimore, Inc.

, 281 F.3d 462, 468 (4th Cir.2 The EEOC (which may or may not speak with authority) instructs that three factors

should be considered: the nature and severity of the impairment; the duration or expected duration

of the impairment; and the permanent or long-term impact, or the expected permanent or longterm impact of or resulting from the impairment. See 29 CFR § 1630.2(j)(2)(i)-(iii) (2002).

8 2001). 2 Thus, the longevity of Bayless’ diabetes in an uncontrolled state, and not his ten years with

d iabetes, is the appropriate inquiry. Evidence offered by Bayless’ attending physician, Dr. Zia,

suggests that the impairment of uncontrolled diabetes was gone within a couple of weeks from its first

detection. For its part, Orkin believed the impairment could be alleviated in six months. Bayless

provides no authority suggesting that either 2 weeks or 6 months is considered “long term.”

Bayless’ uncontrolled diabetes fails to be a “substantial limitation.” Even if the Court assumes that

“all jobs requiring driving, climbing, and heavy lift ing” is a broad enough class under Sutton

, 527 U.S.

at 492, Bayless’ uncontrolled diabetes was a temporary condition which, by Bayless’ own assertion,

lasted only two weeks. Ephemeral impairments are not substantial limitations.

C.

Because the Court assumed working was a major life activity and because the Court concludes

Bayless’ uncontrolled diabetes does not “substantially limit ” the designated major life activity, Bayless

has created no genuine issue of material fact regarding whether Orkin regarded Bayless as actually

disabled.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment in favor

of Orkin.