IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-10648

JAMES H NEWBERRY

Plaintiff-Appellant

v.

EAST TEXAS STATE UNIVERSITY;

WILLIAM WADLEY; ROBERT E HOUSTON

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas

November 18, 1998

Before GARWOOD, KING, and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

In this disabilities case, plaintiff James H. Newberry appeals

the district court’s refusal to instruct the jury that a

“perception of disability” or “record of disability” would qualify

as a disability under the Americans with Disabilities Act. Under

the facts of this case, no reasonable jury could have found that

there existed a “perception of disability” or “record of

disability” without first finding that Newberry had a “disability.”

We thus find that he was not entitled to an instruction concerning

“perception of disability” or “record of disability.” We also

affirm the trial court’s dismissal of various other claims.2 I

James H. Newberry, a tenured professor of photography at East

Texas State University, was fired in 1994. He filed suit, alleging

that he suffered a psychiatric disabi lity. Newberry claimed that

Dr. William Wadley and Dr. Robert E. Houston, superiors of his at

ETSU, conspired to violate his civil rights and that ETSU dismissed

him illegally on account of his disability.

Newberry’s as sociation with ETSU, which has since moved

underneath the umbrella of Texas A&M University and is called Texas

A&M--Commerce, began in 1 979, when he started working as a

professor of photography there. The employment relationship was

troubled from early on, as Newberry’s faculty colleagues

recommended that he be denied tenure. Nonetheless, ETSU granted

Newberry tenure in 1984.

Newberry’s initial appointment was in the Department of

Journalism and Graphic Arts. Tension, however, developed between

Newberry and Dr. Jack Hillwi g, appointed as department chair in

August 1989. Newberry, according to Hillwig, worked fewer hours

than his colleagues, preferred to work only on Tuesdays and

Thursdays, did not work in the morning, and kept no office hours.

Hillwig also testified that Newberry threatened and harassed him.

Hillwig subsequently resigned, out of fear, according to ETSU, that

Newberry would un dermine Hillwig’s own chance of winning tenure.

At that time, Houston, the Dean o f the College of Arts and

Sciences, found Newberry’s conduct to be noncollegial, and

suggested to Newberry that he obtain counseling.3

In 1992, a group that included Newberry recommended that the

photography program be moved to the Department of Art, and ETSU

acceded to the request. The Department was headed by Dr. Wadley,

and Houston was Wadley’s superior. Soon enough, however, Newberry

wished he was back in the Department of Journalism and Graphic

Arts. Witnesses testified that he threatened to sue Wadley,

refused to attend 8 a.m . faculty meetings, and resisted

participating in graduate reviews of art students. Several faculty

members, apparently concerned that Newberry’s behavior would cause

Wadley to leave, approached Houston. On December 1, 1993, Houston

sent a memorandum to Newberry warning him that if his behavior

towards his colleagues did not become more professional, he might

be dismissed.

Newberry and Houston met several times in the next two weeks,

but the substance of those meetings is unclear. Houston also met

with Newberry’s campus counselor Randy Bodenhemer, who later denied

that he told Houston that Newberry was disabled. On February 15,

1994, Newberry drafted a proposal under which ETSU would grant him

a year’s paid sick leave, during which he would study art in New

York. There is some dispute as to whether Newberry made this

proposal spontaneously or whether Houston had earlier suggested the

year off. In any event, Houston refused to grant the request in

the absence of a letter from a psychiatrist indicating that

Newberry required accommodation.

On May 23, 1994, Wadley recommended Newberry’s dismissal, and

Newberry was dismissed two days later, though he would continue to4

rec eive salary and benefits for a year. Newberry duly filed an

appeal according to ETSU procedures. A faculty committee voted, 6-

5 , that Newberry’s tenure should not be revoked, but recommended

that Newberry not be returned to the Department of Art. This vote,

however, was merely advisory, and ETSU President Jerry Morris

upheld Newberry’s dismissal. ETSU’s Board of Regents in turn upheld

this decision.

Newberry filed suit against ETSU, Wad ley, and Houston,

alleging numerous claims. The most important of these claims for

purposes of this appeal are that ETSU violated the Americans with

Disabilities Act, 42 U.S.C. §§ 12111-12213, and that the defendants

conspired to violate his civil rights in violation of 42 U.S.C. §§

1985 and 1986. Newberry filed additional federal claims under 42

U.S.C. § 1983 and the Rehabilitation Act, 29 U.S.C. §§ 701-797b.

State claims included intentional infliction of emotional distress,

civil conspiracy, and a claim under the Texas Labor Code.

The trial lasted six days. At trial, a psychiatrist and a

licensed professional counsel or who had treated Newberry between

1992 and 1994 both testified. The counselor testified that

Newberry suffered from obsessive compulsive traits, and the

psychiatrist specifically diagnosed him as suffering from obsessive

compulsive personality disorder. Testimony indicated that Newberry

had also seen another psychi atrist for treatment. That

psychiatrist and Newberry’s regular physician made diagnoses of

obsessive compulsive disorder as well.5

According to Newberry’s testifying witnesses, the obsessive

compulsive di sorder had numerous effects on Newberry’s basic

physical and mental functions at work and at home. Newberry

himself testified that he had difficulty cleaning himself, waking

up, sleeping, scheduling his daily routine, and controlling his

bowel function. The disorder, he testified, also interfered with

h is relations with others by instilling in him excessive

perfectionism, rigidly ethical behavior, and an insi s tence on

addressing all details of his interpersonal relationships.

As early as late 1992, according to Newberry, Wadley observed

physical symptoms of depression and suggested that Newberry obtain

counseling. In April 1993, Houston advised Newberry that he

believed Newberry suffered from a serious psychological problem and

should seek psychiatric or other mental health care. In December

1993, Houston, aw are that Newberry was seeing a licensed

professional counselor employed by ETSU, met with the counselor and

allegedly indicated that he believed Newberry was sufferi ng from

psychological problems, and suggested to the counselor the

possibility of Newberry’s taking a leave of absence. At around the

same time, Houston discussed Newberry with other faculty members,

who allegedly characterized Newberry with phrases like “paranoid,”

“nuts,” “crazy,” and “ha ving mental difficulties.” Houston also

discussed Newberr y with ETSU’s inside counsel and its president.

Finally, between February and April, 1994, Houston was authorized

to visit with Newberry’s psychiatrist to obtain a diagnosis of a6

mental disorder. Although the psychiatrist contacted him, Houston

decided not to visit with the psychiatrist.

No witness testified that he perceived Newberry to be

disabled. Dr. Alan Harris, Newberry’s psychiatric expert; Randy

Bodenhemer, his psychologist; James Cornehls, Newberry’s economic

expert; two former students of Newberry’s; and various members of

the faculty and administration all testified that they did not

regard him as disabled.

After Newberry rested his case, the defendants moved for

judgment pursuant to Federal Rule of Civil Procedure 50(a). The

court dismissed the §§ 1985 and 1986 claims on the basis that

Wadley and Houston were protected by qualified immuni ty. In

addition, it dismissed the § 1983 claim, on the basis that ETSU is

not a “person” subject to suit under that section, and the

emotional distress claim, in the absence of evidence of outrageous

conduct. The court refused to dismiss the ADA claim.

While the court did not specifically comment on the remaining

claims, the R ehabilitation Act and Texas Labor Code claims

essentially overlap with the ADA claim, and Newberry’s proposed

jury instruct ions did not mention these claims specifically.

Newberry’s proposed jury instructions did specifically mention the

Texas civil conspiracy claim. The court’s jury instructions

omitted this claim, perhaps because the court had dismissed the

similar § 1985 claim.

At the ch arge conference, Newberry did not object to the

o mission of the conspiracy claim. He did, however, specifically7

object to the judge’s truncation of the definition of “disability”

that Newberry had offered with respect to the first element of the

ADA claim. Under the plaintiff’s proposal, Newberry would satisfy

this element by showing “that he had a disability or perceived

disability or record of disability.” The court, however, refused to

include the “perceived disability or record of disability”

language. At the charge conference, the court overruled Newberry’s

objection.

The jury found th at Newberry was not a qualified individual

with a disability under the ADA, and the court entered judgment on

the verdict. Newberry appeals. He specifically challenges only

the district court’s charge as to “disability” and the dismissal of

the conspiracy claims.

II

It is uncontested that the definition of “disability” that

appellant requested tracked the statutory language. S ee 42 U.S.C.

§ 12102(2) (“Disability means ... (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;

or (C) being regarded as having such an impairment.”). In

addition, at least some evide nce indicated that administration

offic ials and other faculty members believed that Newberry had

mental proble ms and suggested counseling. A reasonable jury

therefore might have concluded that a perception existed that

Newberry suffered from such conditions, which we assume, arguendo

only

, could be found to constitute a perception of disability.8

Under the facts of this case, however, no reasonable jury could

have concluded both that Newberry did not suffer from a disability

and that he was dismissed because of a p erception that he was

disabled.

Newberry was required to s how that his disability (or

perception or record thereof) was a motivating factor in the

decision to dismiss him. S ee, e.g.

, Hypes v. First Commerce Corp.

,

134 F.3d 721, 726 (5th Cir. 1998). Had he been able to show that

he in fact suffered a substantial impairm ent of major life

functions, then he might have been able to show that this

impairment motivated his dismissal and that ETSU refused to allow

a reasonable accommodation. Now that Newberry must rely only on a

perception of disability, however, he must show that this

perception was a motivating factor in his dismissal.

Newberry cannot show this. All the evidence indicates that

the university dismis sed him because of his work performance and

l ack of collegiality. In the absence of any evidence that the

university was concerned specifically about Newberry’s being

mentally ill--which would be the case if they believed, for

example, that mentally ill people are inherently dangerous, and

they fired him to avoid the danger--then the perception of him as

mentally ill could not have been a motivating factor in his

dismissal.

Section 12102(2)(C) is concerned not with symptoms, but with

categorization. That is, where an employee engages in conduct that

i s legitimately a basis for dismissal, and the employer belie ves9

that the employee’s conduct is symptomatic of disability, the

employer may fire the employee on the basis of the conduct itself,

as long as the collateral assessment of disability plays no role in

the decision to dismiss. An employee dismissed for unprofessional

behavior might seek refuge in § 12102(2)(A). But an employer need

not provide reasonable accommodation to an em ployee who does not

suffer from a substantially limiting impairment merely because the

employer thinks the employee has such an impairment.

The regulations and the EEOC’s “Interpretive Guidance on Title

I of the Americans with Disabilities Act” state:

(l) Is regarded as having such an impairment means:

(1) Has a physical or mental impairment that does not

substantially limit major life activities but is

treated by a covered entity as constituting such

limitation;

(2) Has a physical or mental 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 [above] but is

treated by a covered entit y as having a

substantially limiting impairment.

29 C.F.R. § 1630.2( l ).

Subsection (1) is inapposite. I t protects employees from

employers who believe a minor impairment to be more serious than it

is. For example, if Newberry had a mild case of obsessive

compulsive disorder that did not interfere with his work, but ETSU

unnecessarily worried that the disorder would prevent h im from

working successfully, this subsection would apply. In this case,

the issue urged by appellant is not whether ETSU exaggerated the

eff ect of Newberry’s impairment, but rather whether ETSU

misattributed Newberry’s poor work performance to a disability.10

Subsection (2) is also irrelevant. There is no evidence that

Newberry’s obsessive compulsiveness caused difficulties only

because of others’ attitudes about the disorder. Newberry’s

dismissal came about not because of others’ attitud es about the

disorder, but because his behavior interfered w ith his job

performance, and perhaps because the behavior displeased others.

Subsection (3) might appear to apply literall y but the

Guidelines clearly explain its purpose with the following example:

“This situation could occur, for example, if an employer discharged

an employee in response to a rumor that the employee is infected

with Human Immunodeficiency Virus (HIV). Even though the rumor is

totally unfounded and the individual has no impairment at all, the

individual is considered an individual with a disability ....” 29

C.F.R. pt. 1630 app. Here, Newberry was dismissed not because of

rumors that he was obsessive compulsive, but because of his

conduct.

We must uphold a jury verdict if “based upon the record

. . .

the challenged instruction could not have affected the outcome of

t he case.” B ender v. Brumley

, 1 F.3d 271, 276-77 (5th Cir. 1993)

(internal quotation marks omitted); see also Russell v. Plano Bank

& Trust

, 130 F.3d 715, 719 (5th Cir. 1997). A judgment will be

reversed based on a faulty jury charge only where “the charge as a

whole leaves us w ith substantial and ineradicable doubt the jury

has been properly guided in its deliberations.” Hall v. State Farm

Fire & Cas. Co.

, 937 F.2d 210, 21 4 (5th Cir. 1991) (internal

quotation marks omitted). Because under the facts of this case,1 Given this finding, we need not address whether the claims

were barred und er the intra-corporate conspiracy doctrine or the

approach taken in Great American Fed. S&L Ass’n v. Novotny

, 99

S.Ct. 2345 (1979).

2 In D eubert v. Gulf Fed. Sav. Bank

, 820 F.2d 754 (5th Cir.

1987), we held that to state a claim under § 1985(3), plaintiffs

must allege that they are victims of a race-based conspiracy. This

holding was clouded by t he Supreme Court’s statement that “some

racial or perhaps otherwise class-based, invidiously discriminatory

animus” is a prerequisite to a § 1985(3) action. Griffin v. Breckenridge

, 403 U.S. 88, 102 (1971). The Court, however, has

never held that nonracial animus is sufficient. See United Bhd. of

Carpenters v. Scott

, 463 U.S. 825 (1983) (refusing to extend §

1985(3) to commercial or economic conspiracies); Bray v. Alexandria

Women’s Health Clinic

, 506 U.S. 263 (1993) (refusing to extend §

1985(3) to conspiracies against women seeking abortions). Thus,

Deubert remains the law in this circuit.

11 there are no circumstances in which the change in the jury charge

could have affected the verdict, no such doubt exists.

III

The evidence furnishes no suppo rt for Newberry’s § 1985(3)

claim that he was dismissed because of animus directed against him

on account of his alleged disability. 1 In Burns-Toole v. Byrne

, 11

F.3d 1270 (5th Cir. 1994) , we refused to consider a claim that §

1985(3) extends to religious discrimination. We acknowledged that

the scope of § 1985(3) was an “interesting” question. I d. at 1275

n.25. 2 Nonetheless, we held that § 1985(3) could not be applied in

the absence of evidence of “some class-based animus.” Id. at 1276.

We noted: “ [The plaintiff] contends that she was discriminated

against because she is a Seventh Day Adventist. She has failed,

however, to present any evidence in support of the proposition that3 If the § 1985 claim fails, so must the § 1986 claim. See 42

U.S.C. § 1986 (“Every person who, having knowledge that any of the

wrongs conspired to be done, and mentioned in section 1985 of this

title, are about to be committed ... shall be liable ....”).

12 the defendants discriminate against Seventh Day Adventists as a

class.” Id.

Even if Newberry has presented some evidence that he was

discriminated against because of his mental illn ess, he has

presented no evidence that ETSU discriminated against the mentally

ill or disabled as a class. Therefore, Newberry cannot maintain

his §§ 1985 and 1986 claims. 3

IV

Newberry has not contested the dismissal of his § 1983 claim

or of his emotional distress claim, and they are waived. S ee Fed.

R. App. P. 28(a). He failed to object to the jury instruction that

omitted the civil conspiracy claim under Texas law, and it is also

waived

. See Latuso v. Uniroyal, Inc.

, 783 F.2d 1241, 1242 (5th

Cir. 1986); see also Fed. R. Civ. P. 49(a). To the extent that

Newberry’s Rehabilitation Act claim does not overlap his ADA claim,

that claim is also defeated, beca use Newberry has offered no

evidence that he was adversely treated solely because of his

handicap. See Chandler v. City of Dallas , 2 F.3d 1385, 1390 (5th

Cir. 1993). Finally, the Texas Labor Code claim overlaps entirely

with the ADA claim. S ee Tex. Lab. Code § 21.001(3) (Vernon 1996).

V

For the above reasons, we AFFIRM the judgment.13

AFFIRMED.